Delhi High Court
Bharati Vidyapeeth & Ors vs Guru Gobind Singh Indraprastha on 20 February, 2009
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
JUDGMENT RESERVED ON: 07.12.2008
% JUDGMENT DELIVERED ON: 20.02.2009
+ (1) W.P.(C) 1995/2008
BHARATI VIDYAPEETH & ORS. ..... Petitioners
Through: Dr. A.M. Singhvi, and Mr. Udai
Lalit, Senior Advocates with Mr.
Prasenjit Keswani, Advocate.
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS. ..... Respondents
Through: Mr. A. K. Singla, Senior Advocate
with Mr.G. D. Goel and Mr. Sanjiv
Goel, Advocates for respondent
no.1.
Mr. Amiet Andley, Advocate for
respondent no.2.
Mr. Amitesh Kumar, Advocate for
respondent no.3/UGC.
Mr. R. N. Singh, Advocate for
respondent no.4.
AND
(2) W.P.(C) 3885/2008
BHARATI VIDYAPEETH & ORS. ..... Petitioners
Through: Dr. A.M. Singhvi, Sr. Advocate with
Mr. Udai Lalit, Sr. Advocate &
Mr. Prasenjit Keswani, Advocate.
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS. ..... Respondents
Through: Mr. A. K. Singla, Senior Advocate
with Mr.G. D. Goel and Mr. Sanjiv
Goel, Advocates for respondent
no.1.
Mr. Amiet Andley, Advocate for
respondent no.2.
Mr. Amitesh Kumar, Advocate for
respondent no.3/UGC.
Mr. R. N. Singh, Advocate for
respondent no.4.
W.P.(C) Nos.1995/08 & 3885/08 Page 1 of 55
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
VIPIN SANGHI, J.
1. By this common judgment I propose to dispose off the aforesaid
two writ petitions.
2. The petitioners state that petitioner no.1, Bharti Vidyapeeth, is a
registered trust and is involved in promoting education throughout the
country. It is stated that petitioner No.2 Bhartiya Vidyapeeth is a
deemed University under Section 3 of the University Grants
Commission (UGC) Act, 1956. It is situated at Pune, having various
constituent institutions in the country. Petitioner No.3, Bhartiya
Vidyapeeth College of Engineering, is an engineering college set up by
the petitioner No.1 trust having its campus in New Delhi. Petitioner
No.3 institute imparts courses leading to the grant of B. Tech. degree
in engineering. Petitioner No.4, Bhartiya Vidyapeeth Institute of
Computer Applications and Management, New Delhi is an institute
imparting education in the field of computer education and
management. It has been set up by petitioner No.1 and has its
campus at the same location as petitioner No.3 in New Delhi.
Petitioner No.4 imparts courses and programmes leading to the grant
of Master in Computer Applications (MCA) degree. Respondent No.1
Guru Gobind Singh Indraprastha University (GGSIP University for short)
is constituted under the Guru Gobind Singh Indraprastha University
Act, 1998. Petitioner Nos.3 & 4 institutions have been affiliated with
respondent No.1 University since their inception. Respondent No.2 is
the Government of NCT of Delhi impleaded through the Secretary,
Department of Training and Technical Education (DTTE). Respondent
Nos.3 & 4 are the University Grants Commission (UGC for short),
constituted by the University Grants Commission Act, 1956 (herein
referred to as UGC Act) and Ministry of Human Resources
Development, Government of India, respectively.
3. Petitioner No.1, with a view to set up an engineering college in
Delhi applied for allotment of institutional land to the DDA. This
application was made on 12.05.1999. Government of NCT of Delhi
recommended the case of the petitioner for allotment of land to DDA
and vide communication dated 02.08.1999 informed the petitioner that
it had recommended the petitioners‟ case to the DDA for allotment of
about 5 acres of land for setting up an engineering college on various
terms and conditions set out in the said letter. The DDA approved
allotment of land admeasuring 14862.35 sq. meters to the petitioner
No.1 on perpetual leasehold basis for setting up an engineering college
and hostel for students. The premium and ground rent charged by the
DDA of Rs.2,72,91,941/- was paid by the petitioner. Thereafter, the
petitioner No.3 institution was developed and set up on the said land.
Respondent No.4 institution was also set up on the same campus.
4. The Ministry of Human Resources (Department of Higher
Education), Government of India, issued a notification dated
14.02.2007 under Section 3 of the UGC Act, whereby it was declared
that upon the recommendation of the UGC, the petitioner Nos.3 & 4
were included within the ambit of "Bhartiya Vidyapeeth" deemed to be
University, Pune, as its constituent institutions for the purpose of the
UGC Act from the date of disaffiliation of the said two institutions from
the respondent No.1, GGSIPU, the affiliating University, subject to the
petitioner fulfilling various conditions mentioned in para 5 of the said
notification. The notification, inter alia, required the petitioners to take
immediate steps to disaffiliate themselves from the respondent No.1
University. A little later, the respondent UGC issued a notification
dated 13.04.2007 in line with the notification issued by respondent
No.4 on 14.02.2007 aforesaid. This notification stipulated that the
constituent institutions, namely, petitioner Nos.3 & 4 shall abide by the
norms laid down by UGC.
5. In the meantime, the petitioners vide letter dated 17.02.2007
informed the respondent University that from the academic year 2007-
08 it would be governed by the petitioner deemed to be University.
The petitioners requested the respondent University to start the
gradual disaffiliation of the said two institutions. It was also stated that
the students already enrolled in the courses being run by the petitioner
Nos.3 & 4 institutions would continue to be students of the respondent
University. Consequently, the respondent University informed
respondent No.2, Government of NCT of Delhi of the aforesaid
development and sought the guidance of respondent No.2 on the
subject of granting no objection certificate for disaffiliation to the
petitioner Nos.3 & 4 institutions.
6. It appears that respondent No.2 expressed reservations against
granting its no objection to the disaffiliation of the petitioner Nos. 3 & 4
institutions from the respondent University, as the grant of the said
disaffiliation would result in liberating the said institutions from the
supervision and control of the respondent State Government, inter alia,
in relation to grant of admissions to students in these institutions.
Admittedly, upon disaffiliation, the students would be admitted to the
courses offered by petitioner Nos.3 & 4 on all India basis, whereas, as a
condition of affiliation with the respondent University and under the
"The Delhi Professional Colleges or institutions (Prohibition of
Capitation Fee, Regulations of Admission, Fixation of Non-Exploitative
Fee and other Measures to Ensure Equity and Excellence) Act, 2007"
(hereinafter referred to "Act of 2007") the petitioner institutions have
been offering 85% of the seats to students who come from Delhi
region, and only the remaining 15% seats are filled on all India basis.
7. To satisfy this concern of respondent No.2, the petitioners issued
a letter dated 04.04.2007 undertaking to respondent No.2 that they
would grant reservation in respect of 85% of the seats from amongst
students of Delhi region for being filled by merit w.e.f. the academic
year 2007-08. On 26.04.2007 respondent No.2 forwarded a format of
an undertaking that it required petitioner No.3 to furnish, before the
matter regarding disaffiliation is processed further. The said format is
material and is reproduced hereinbelow: -
"UNDERTAKING
(to be submitted in non-judicial stamp paper of Rs.100)
I _____________________________________,
____________________ of Institute is competent to give
this undertaking as authorised by the Resolution
No.__________ of the ___________________ Society, do
hereby undertake as under: -
1. That the institute is applying for the status of a
constituent college of _________________ (Deemed
University), Pune.
2. That the institute is presently affiliated to the GGSIP
University, Delhi for conducting course in ____________
disciplines.
3. That the Government of India in the Ministry of HRD
has notified the institute as constituent college of the
Bhartiya Vidya Peeth vide notification
no._________________ dated ____________ subject to the
disaffiliation for the GGSIP University.
4. That the Institute has been allotted land by the DDA
on concessional rates on recommendation of
Government of NCT of Delhi.
5. That the AICTE accorded the approval to the courses
being run in the institute on recommendation/NOC of
the Government of NCT of Delhi for facilitating technical
education in Delhi.
6. That presently, the institute is following the statutes,
rules, Regulations and policy guidelines of the
Government of NCT of Delhi with regard to the
admission, reservation of seats/quotas and fee
structure.
7. That in lieu of the land allotted on concessional
rates and the NOC granted by the GNCTD to seek
approval of AICTE, the institute hereby
undertakes to continue to abide by the statutes,
rules, Regulations and policy guidelines of the
Government of NCT of Delhi or any other
institution as may be issued with regard to the
admission, reservation of seats/quotas and fee
structure. The institute hereby agrees to provide
85% of its seats to students from Delhi as
prescribed by the govt. of NCT of Delhi and to
provide reservation to other categories as
prescribed by Govt. of NCT of Delhi.
8. That in case of any violation of any of the
above conditions and/or the statutes, rules,
Regulations and policy guidelines of the
Government of NCT of Delhi with regard to the
admission, reservation of seats/quotas and fee
structure, by the institute, the GNCTD may take
appropriate legal action against the institute
which may include the recommending the
cancellation of allotment of land or payment at
market rate for the land allotted to the institute
to the DDA and de-recognition of courses by the
AICTE and UGC.
9. That we undertake to bound by the regulation
of the fee regulatory committee & the admission
regulatory committee or such other authority as
may be prescribed by the GNCTD in compliance of
the aforementioned clauses in this undertaking.
10. That the Govt. of NCT of Delhi is
authorised to verify the compliance of above
mentioned conditions by calling the relevant
documents/proofs." (emphasis supplied)
8. The petitioners responded to the said requirement of respondent
No.2 on 04.05.2007. It was stated that since the petitioner institutions
were included within the ambit of Bhartiya Vidyapeeth deemed to be
University, furnishing the undertaking as desired by respondent No.2
would tantamount to agreeing to be governed by two different
controlling bodies, namely, the UGC and the Government of NCT of
Delhi. The same would not be consistent with and would violate the
Statutes, Rules and Regulations of the UGC. The petitioners also
stated that it would continue to use the allotted land for the purpose
for which it was allotted. The petitioners stated that they would not be
in a position to furnish the undertaking as desired by respondent No.2.
The petitioners sent two more communications on 08.05.2007 and
08.06.2007 once again seeking issuance of no objection certificate by
respondent No.2 for the purpose of disaffiliation of the petitioner
institutions. The petitioners further state that even the Delhi
Development Authority has given its no objection to the disaffiliation of
the petitioner institutions. However, no action was taken by the
respondent, Govt. of NCT of Delhi, and respondent No.1, GGSIP
University, with the result that for the academic session 2007-08, the
petitioners could not admit the students in terms of the UGC
Regulations. Even for the academic session 2008-09, in its brochure,
the respondent University continued to show the petitioner institutions
as institutions affiliated to it for the purpose of filling of the seats in the
petitioner institutions on the basis of the common admission test.
9. Faced with the aforesaid situation, on or about 11.03.2008 the
petitioners preferred W.P.(C) No.1995/2008 against the respondent,
inter alia, seeking the issuance of a writ in the nature of mandamus
directing respondent Nos.1 and 2 to grant disaffiliation to the petitioner
Nos.3 & 4 from the respondent No.1 University from the following
academic session. In the alternative, the petitioners sought issuance
of a direction to respondent Nos.1 & 2 to immediately decide the issue
of grant of disaffiliation to petitioner Nos.3 & 4 before the next
academic session. The Court issued notice in this petition to the
respondents on 18.03.2008. The notices were accepted on behalf of
the respondent Nos.1 to 4 in Court. Time was granted for filing the
reply/counter affidavits.
10. During the pendency of the said writ petition, the respondent
No.2 issued a communication dated 14.05.2008 stating that since the
petitioners had failed to furnish the undertaking required of them in
the formats sent along with the letter dated 26.04.2007, and the
notification dated 13.04.2007 issued by the UGC is a conditional
notification effective from the date of disaffiliation of the petitioner
institutions from the affiliating University, it had been decided by the
Department of Training and Technical Education of the Govt. of NCT of
Delhi not to accede to the petitioner‟s request for granting no objection
for disaffiliation of the petitioner institutions from the respondent No.1
University. The reason given by respondent No.2 in the said
communication, inter alia, was that the petitioner institutions had
obtained land from the DDA, based on the recommendation of the
Delhi Government.
11. After the aforesaid communication was issued, the petitioners
preferred W.P.(C) No.3885/2008 to impugn the said communication
and also to seek the issuance of the writ of mandamus directing the
respondent Nos.1 & 2 to grant disaffiliation to petitioner Nos.3 & 4
from the respondent No.1 University.
12. The submission of learned senior counsels for the petitioners, Mr.
Uday Lalit and Dr. A.M. Singhvi, is that though the petitioners have no
difficulty in reserving 85% of the seats for being filled up from students
hailing from Delhi region, the said requirement and other regulatory
requirements being insisted upon by respondent No.2 (for considering
the application of the petitioners for disaffiliation) is unreasonable and
illegal. By reference to the letter of allotment dated 15.10.1999 issued
by the DDA, it is submitted that no condition was placed on the
petitioners to the effect that they would be bound to follow the
norms/guidelines of the Government of NCT of Delhi including in
relation to the admisison/employment criteria, fee structure etc. It is
argued that there would be no breach or violation of the conditions
upon which the allotment of land was made by the DDA, merely
because petitioner Nos.3 & 4 would cease to be institutions affiliated to
respondent No.1 University, since they would, in any event, continue to
remain institutions imparting the same educational courses, which
they have been imparting from their inception.
13. It is argued that respondent No.2 cannot seek to exercise control
and supervision over the petitioner institutions any more, they having
been declared as constituent institutions of Bhartiya Vidyapeeth
deemed to be University, Pune, vide notifications dated 14.02.2007
issued by the Government of India and 13.04.2007 issued by the UGC.
14. Reference is made to Section 2(e) of the UGC Act defines the
expression "University" to mean 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 recognized by the Commission in accordance
with the regulations made in this behalf under the Act. The
Commission is defined in Section 2(a) to mean, the University Grants
Commission established under Section 4 of the UGC Act. Section 3
states that the Central Government may, on the advice of the
Commission, declare, by notification in the official gazettee that any
institution for higher education, other than a University, shall be
deemed to be a University for the purpose of the said Act, and on such
a declaration being made, all the provisions of the UGC Act shall apply
to such an institution as if it were a University within the meaning of
clause (f) of Section 2. It is argued that the notification dated
14.2.2007 issued by the Central Government has been issued under
Section 3 of the UGC Act, on the advice of the UGC whereby petitioner
nos. 3 and 4 institutions, which are institutions of higher education and
did not by themselves enjoy the status of being a University, have
been included under the ambit of Bhartiya Vidyapeeth i.e. petitioner
No.2, a deemed to be University as its constituent institution for the
purposes of the UGC Act. The said position has been reiterated by the
UGC vide its notification dated 13.4.2007. However, both these
notifications state that petitioners 3 and 4 would become constituent
institutions of Bhartiya Vidyapeeth, deemed to be University, Pune
"from the date of disaffiliation of these institutions from the affiliating
University, namely Guru Gobind Indraprastha University, Kashmere
Gate, Delhi". Reference is also made to the various conditions
imposed by the Central Government in the declaration made by the
Central Government. These conditions, inter alia provide:-
"2. .......The declaration relating to inclusion
of the institutions indicated in para 1 of
the notification, will be subject to the
following conditions.
(a) ..........
(b) .........
(c) The `Deemed-to-be-University‟ Institute
shall take immediate steps for
disaffiliation of the institutions concerned
from Guru Gobind Singh Indraprastha
University, Delhi.
(d) Bharati Vidyapeeth shall award degrees,
etc in respect of the courses run by the
institutions mentioned in para 1 of the
notification only to those students who
are admitted/enrolled with them
subsequent to the date of this
notification.
(e) As for those students who are already
enrolled with the institutions mentioned
in para 1 of the notification, prior to the
date of this notification, the present
affiliating University viz. Guru Gobind
Sindh Indraprastha University, Delhi shall
have to agree to examine and grant
degrees to them on successful
completion of the courses/programmes
they are pursuing in these institutions
presently.
(f) ...........
(g) The deemed-to-be-University under the
ambit of which the said institutions are
being included, shall suitably modify/
amend its Memorandum of Association
(MoA) and Rules and finalise them in
conformity with the University Grants
Commission‟s Model MoA and Rules for
the Deemed to be Universities after the
inclusion of these institutions, on a
priority basis.
(h) The `Deemed-to-be-University‟ as well as
all its constituent shall continue to abide
by the norms and guidelines as laid down
by the UGC, AICTE, etc from time to time,
as are applicable to „Deemed-to-be-
Universities."
15. The submission of learned senior counsels for the petitioners is
that the subject matter of "Co-ordination and determination of
standards in institutions for higher education or research and scientific
and technical institutions" is covered by entry 66 of List I of Schedule
VII of the Constitution. The University Grants Commission is
constituted as a statutory body "to make provision for the co-
ordination and determination of standards in Universities". Once an
institution for higher education and research is declared as a deemed
to be University (herein also referred to as a "Deemed University"), or
a constituent institution of a deemed to be University for the purposes
of the UGC Act, all the provisions of the UGC Act "shall apply to such
institution as if it were a University within the meaning of clause (f) of
Section 2". The executive power of the Central Government is co-
extensive with the legislative power of the Parliament. Consequently,
once an institution is declared to be a deemed University, or a
constituent institution of a deemed University, such an institution is
bound by all the Rules and Regulations framed by the UGC, or by the
Central Government in exercise of its statutory powers under the UGC
Act. The power of the State Government to legislate in respect of
institutions of higher education or research and scientific and technical
institutions is derived from entry 25 of List III i.e. the concurrent list of
the VIIth Schedule to the Constitution which reads "Education, including
technical education, medical education and Universities, subject to the
provisions of entries 63, 64, 65 & 66 of List I; vocational and technical
training of labour". It is therefore argued that the power of the State
Government to either legislate, or to issue executive directions to
institutions of higher education is subject to the power of the Central
Government to legislate or issue executive directions, inter alia, under
entry 66 of List I of the VIIth Schedule. Once an institution of higher
education has been declared as a deemed University or a constituent
institution of a deemed University under Section 3 of the UGC Act, the
State Government cannot seek to legislate in respect of, or exercise
executive control over such an institution. It is also submitted that the
notification issued by the Central Government under Section 3 of the
UGC Act cannot be nullified and/or thwarted by the State Government
by withholding the grant of NOC unjustifiably. It is also argued by
learned senior counsel for the petitioners that merely because
respondent no.2 had recommended the case of the petitioners for
allotment of institutional land to the DDA and thereafter land was
allotted by the DDA at concessional rates, the respondent no.2 cannot
withhold the grant of no objection to the disaffiliation of petitioners 3
and 4 institution.
16. Dr. Singhvi has also argued that the approach of respondent no.2
in seeking to exercise supervision and control, inter alia, in respect of
admission to these institutions post disaffiliation, so as to preserve
85% of the seats for students from Delhi Region, is a parochial
approach. If such an approach of a State Government is to be
sanctioned and accorded approval, it would not be possible to accord
the status of deemed University to institutions of higher education, and
research in any State within the Indian Union, since all such institutions
would, more often than not, be located in one or the other State of the
Indian Union.
17. Learned senior counsel for the petitioners have relied upon
State of Tamil Nadu and Another V. Adhiyaman Educational &
Research Institute and Others, (1995), 4 SCC 104, Jaya Gokul
Educational Trust V. Commissioner & Secretary To
Government Higher Education Department,
Thiruvanathapuram, Kerala State and Another, (2000) 5 SCC 231
and Bharti Vidyapeeth (Deemed University) & Others v. State
of Maharashtra & Anr. in support of the aforesaid submissions.
18. Counter affidavits were filed by the respondents in
W.P.C.1995/2008. Respondent no.1, GGSIP University, in its counter
affidavit states that the Central Government had earlier issued a
notification dated 26.4.1996, on the advice of the UGC whereby
various institutions of Bhartiya Vidyapeeth at Pune were declared as
deemed to be University for the purpose of the UGC Act. It is argued
that Bhartiya Vidyapeeth is not an institution for the purpose of the
UGC Act. It is a trust registered under the Bombay Public Trust Act.
The Central Government has not conferred the status of "deemed to
be University" under Section 3 of the UGC Act upon Bhartiya
Vidyapeeth, Pune. It is the 12 institutions mentioned in the notification
dated 26.4.1996 which have been granted the status of "deemed to be
University" under Section 3 of the UGC Act. Respondent no.1 submits
that the notification dated 14.2.2007 issued by the Central
Government and relied upon by the petitioners recites that petitioner
no. 3 and 4 institutions "are included under the ambit of Bhartiya
Vidyapeeth, deemed to be University, Pune as its constituent
institutions". It is also argued that "deemed to be University"
institutions are only stand alone teaching institutions, and cannot have
other constituent/affiliated institutions. This declaration is, on the fact
of it incorrect and defective, since Bhartiya Vidyapeeth is not a
"deemed to be University".
19. Reference is made to Statute 24 framed under Section 26(2) of
the GGSIP University Act, 1998 which provides that no institution can
be considered for affiliation with respondent no.1 University unless it
submits no objection certificate issued by the State Government and is
recognized by an appropriate authority. It is argued that for seeking
affiliation, an institution requires no objection certificate from the State
Government, for disaffiliation as well, a no objection certificate would
be required by an affiliated institution. Further NOC has to be obtained
from AICTE for change of University. It is also argued that the
petitioner no.3 and 4 institutions were recommended for allotment of
land at concessional rates, and such rates were allowed to be charged
by the DDA because reservation in seats of upto 85%, in such
institutions, was made for Delhi Region students. After disaffiliation
this reservation of 85% seats for students of Delhi region will vanish.
Reliance is also placed on the Act of 2007 and the Rules framed
thereunder. It is argued that unaided self financing institutions of
higher education are required to abide by the statutory provisions
made thereunder.
20. It is stated that on 6.2.2007, a meeting was held in the office of
the Principal Secretary to the Chief Minister, wherein it had been
agreed that since land to most of the institutions had been granted by
the DDA at concessional rates on the recommendations of the
Government of NCT of Delhi, there is enough justification to regulate
the fee being charged by these institutions. It was also decided that
wherever the case for allotment of institutional land by the land owing
agency i.e. DDA had been sponsored by the Government of NCT of
Delhi, for an institution to be set up in Delhi on the premise that the
institution would be affiliated with the respondent University, the
institution cannot withdraw from the affiliation and go in for courses
which are no so affiliated, or go in for a deemed University status or to
become an off-campus centre of another University, or a deemed
University. In such cases, the land which had been sponsored and
allotted at concessional rate will either have to be surrendered, or
market rate would have to be paid before such permission can be
granted by the Government of NCT of Delhi.
21. Respondent no.2, Government of NCT of Delhi in their counter
affidavit in W.P(C)No.1995/08 states that the petitioners had submitted
an affidavit dated 2.8.1999 of the Principal, Bhartiya Vidyapeeth
College of Engineering to the effect that the petitioner society would
follow all the norms and guidelines of AICTE and the directions of the
Government of NCT of Delhi including the criteria for
admission/employment of qualified staff/governing body, fee structure
etc. It is stated that in terms of the affidavit, the society had
undertaken to provide 85% seats to students from Delhi region, and
only the remaining 15% seats could be filled on All India basis. This
affidavit was furnished to seek the sponsorship of its case by the
respondent Government to the DDA for allotment of land at
concessional rates. Reference is also made to Section 5(2) of the Delhi
University Act, 1922 and on that basis it is argued that the said
provision prohibits educational institutions, apart from those affiliated
to Delhi University and the respondent GGSIP University from being
affiliated to any other University in the country, unless allowed by the
Central Government by an order in writing. According to the
respondents, no such order as envisaged under Section 5(2) of the
Delhi University Act, 1922 has been passed by the Central
Government.
22. The University Grants Commission in their counter affidavit filed
in W.P(C) No.1995/08 states that to consider the proposals seeking
confirmation of "deemed to be University" status under Section 3 of
the UGC Act, the UGC has framed guidelines which lay down the
requirements and minimum eligibility criteria regarding the
institution‟s objectives, programmes, faculty, infrastructural facilities,
financial viability etc. Clause 13 of the guidelines specifically provides
that in institutions declared as deemed to be University, "admissions
shall be made on all India basis to the identical courses in all the
deemed to be universities through a common entrance test conducted
either by the UGC or by an institution/agency identified and approved
by the UGC".
23. Reference is also made to the Office Memorandum dated
4.10.2004 issued by the Department of Secondary and Higher
Education, Ministry of Home Resources Development, Government of
India which, inter alia, provides that the deemed to be universities will
have the option to participate in the All India Engineering Entrance
Examination (AIEEE) conducted by the Central Board of Secondary
Education (CBSE), or to conduct their own entrance examination and
admit students in a fair and transparent manner. Deemed Universities
and Central Universities willing to participate in AIEEE will give their
option to the UGC which will forward the same to CBSE and Central
Council Board. The State Government shall continue to hold their own
common entrance tests for admissions in institutions within their
States as before. This Office Memorandum further provides that all
admissions in different approved quotas shall be made strictly on the
basis of inter se merit based on common entrance tests as above.
Similarly, in relation to the MCA programme, the Government of India
has issued O.M dated 7.1.2005 whereby it was decided to dispense
with All India MCA Common Entrance Test (AIMCET). Instead, the
deemed Universities are permitted to conduct their own entrance
examination and admit students in a fair and transparent manner. The
UGC also relies upon the decision of the Supreme Court in Bhartiya
Vidyapeeth (deemed University) (supra).
24. It is also stated that the students who would be enrolled in the
deemed University shall be entitled to get their degrees from the same
deemed University on successful completion of courses/programmes.
However, students who are enrolled with the institutions while they
continue to be affiliated to another University will be examined and
granted degree by the affiliating University on successful completion of
the courses/programmes, which they are pursuing in the institutions.
The UGC has therefore supported the stand of the petitioner.
25. In W.P.(C) No.3885/2008, counter affidavit to the writ petition
has been filed by respondent no.2, Government of NCT of Delhi. The
stand of respondent no.2 in its said counter affidavit is a mere
repetition of the stand that it had taken in its counter affidavit filed in
W.P.(C) No. 1995/2008. However, it is further stated that the
Government of NCT of Delhi had taken up the issue with the Central
Government with regard to the withdrawal of the notification dated
14.2.2007 declaring petitioner nos. 3 and 4 as constituent institutions
of petitioner no.3, deemed to be University, so that they could continue
to be affiliated with respondent no.1.
26. Entry 66 of the Union List in the VIIth Schedule to the Constitution
empowers the Central Government to frame legislation on the subject
of "Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions."
From the Preamble of the UGC Act, 1956, it is seen that this Act has
been framed by the Parliament for the purpose of making "provision
for the co-ordination and determination of standards in Universities
and for that purpose to establish the University Grants Commission."
The power of the State Government to legislate in respect of
"Education, including technical education, medical education and
Universities" is derived from Entry 25 of the Concurrent List in the VIIth
Schedule to the Constitution. This entry specifically limits the power of
the State Government, inasmuch as, the said power is "subject to the
provisions of entries 63,64, 65 and 66 of List I." Even otherwise, by
virtue of Article 246(2), the legislative power of the State with respect
to any of the matters enumerated in List III i.e. the Concurrent List in
the VIIth Schedule is subject to the power of the Parliament to make
laws with respect to any of the matters enumerated in List I of the VIIth
Schedule.
27. The UGC Act, having been legislated in 1956, it cannot be said
that the source of the legislative authority of the Parliament to
legislate the said Act related to Entry 25 in the Concurrent List as it
now stands, since Entry 25 of the Concurrent List as it now stands
came into being after the Forty Second Amendment to the Constitution
w.e.f. 1.3.1977. Prior to the said constitutional amendment, the
relevant entry was to be found in Entry 11 of the State List which read:
"Education including Universities subject to the
provisions of Entries 63, 64, 65 and 66 of List I and
Entry 25 of List III."
28. Even if the UGC Act is now treated to fall within the scope of
Entry 25 of the Concurrent List, the Parliament having legislated on the
subject, by enacting the UGC Act, the State Government cannot seek
to legislate, such that it results in conflict between the Central Act. For
the same reason the State Government cannot, by its executive fiat,
issue directions or frame guidelines which encroach upon the authority
of the Central Government or the UGC derived from the UGC Act and
the Rules/Regulations framed thereunder. Consequently the exercise
of its power by the State Government to legislate and/or to issue
executive directions in respect of institutions of higher education,
research and scientific and technical institutions impinging on the
aspect of co-ordination and determination of standards in the said
institutions would be ultra vires the Constitution and suffer from
legislative and executive incompetence, if the same is not in
consonance with the laws, Rules, Regulations and Guidelines framed
by the Central Government or by a statutory body like the UGC,
legislatively created in exercise of the power referable to Entry 66 of
List I.
29. In Adhiyaman (supra), the Supreme Court answered the
question whether after the coming into force of the All India Council for
Technical Education Act, 1987 (referred to as the "Central Act"), the
State Government has power to grant and withdraw permission to start
a technical institution as defined in the Central Act. In terms of the
G.O.M No.429 dated 17.4.1984 issued by the education, science and
technical department of the State of Tamil Nadu, the respondent
Adhiyaman institute made an application to seek permission to start a
new engineering college under the self financing scheme without any
financial commitment from the State Government. The State
Government granted conditional permission to the respondent trust to
start a private engineering college beginning with the academic year
1987-88 vide its order dated 9.6.1987. The respondent institute
applied to the Madras University for affiliation which was granted
temporarily on 21.11.1987 for the academic year 1987-88 for the first
year course. The affiliation for the subsequent years was to be applied
for and obtained in each year. On the basis of a report prepared by a
High Powered Committee appointed by the State Government to make
an assessment of the functioning of such like institutions, the
respondent institute was issued a show cause notice on 16.7.1989 to
explain as to why permission granted by the Government to start the
college should not be withdrawn. The Syndicate of the Madras
University accepted the report of the High Powered Committee and
resolved to reject the request for provisional affiliation for the
academic year 1989-90 and also resolved to issue a show cause notice
to the respondent as to why the provisional affiliation granted to it for
the academic years 1987-88 and 1988-89 should not be cancelled.
The University accordingly issued show cause notice to the respondent
trust. On 26.7.1989, the request for granting provisional affiliation for
the years 1989-90 for the first year, and also the request for
provisional affiliation of second and third year courses for 1989-90 was
rejected. The aforesaid action was successfully challenged by the
respondent by filing writ petitions before the Madras High Court.
30. The Supreme Court while examining the power of the State
Government and the Madras University respectively to derecognize
and disaffiliate the engineering college dealt with the larger issue,
namely, the conflict between the Central Act on the one hand and the
State Act and the Rules made thereunder on the other hand viz. the
Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules
made thereunder and the Madras University Act, 1923 and the
Statutes and Ordinances made thereunder.
31. Upon examination of the various provisions of the AICTE Act, the
Supreme Court concluded that the provisions of the said Act including
its Preamble make it abundantly clear that the Council has been
established under the Act for co-ordinated and integrated development
of technical, educational system at all levels throughout the country
and is enjoined to promote qualitative improvement of such education
in relation to planned quantitative growth. The Council is also required
to regulate and ensure proper maintenance of norms and standards in
the technical education system. The Council is further to evolve
suitable appraisal systems incorporating such norms and mechanisms
in enforcing their accountability. It is required to provide guidelines for
admission of students and has power to discontinue grants and to
derecognize the institutions where norms and standards laid down by
it and directions given by it from time to time are not followed. The
Supreme Court observed:-
"................. What is further important to note
is the subject covered by this statute is fairly
within the scope of Entry 66 of List I and Entry
25 of List III. Further, these regulations along
with other regulations made by the Council and
the rules to be made by the Central
Government under the Act are to be laid before
the Parliament. Hence, on the subjects covered
by this statute, the State could not make a law
under Entry 11 of List II prior to Forty-Second
Amendment nor can it make a law under Entry
25 of List III after the Forty-Second
Amendment. If there was any such existing law
immediately before the commencement of the
Constitution within the meaning of Article 372
of the Constitution, as the Madras University
Act, 1923, on the enactment of the present
Central Act, the provisions of the said law if
repugnant to the provisions of the Central Act
would stand impliedly repealed to the extent of
repugnancy. Such repugnancy would have to
be adjudged on the basis of the tests which are
applied for adjudging repugnancy under Article
254 of the Constitution."
32. The Supreme Court then proceeded to examine the provisions of
the State law namely Tamil Nadu Private Colleges (Regulation) Act. It
was observed that Section 1 (3) of the said Act makes it applicable to
all private colleges. It could also be made applicable to colleges
imparting technical education, including engineering colleges. The
Supreme Court observed that the provisions of the State Act show that
if it is made applicable to the technical institutions, it will overlap and
will be in conflict with the provisions of the Central Act in various areas,
some of which enumerated by the Court. In para 27 the Supreme
Court observed:
"27. The provisions of the State Act
enumerated above show that if it is made
applicable to the technical institutions, it will
overlap and will be in conflict with the
provisions of the Central Act in various areas
and, in particular, in the matter of allocation
and disbursal of grants, formulation of schemes
for initial and in-service training of teachers
and continuing education of teachers, laying
down norms and standards for courses,
physical and institutional facilities, staff
pattern, staff qualifications, quality instruction
assessment and examinations, fixing norms
and guidelines for charging tuition and other
fees, granting approval for starting new
technical institutions and for introduction of
new courses or programmes, taking steps to
prevent commercialization of technical
education, inspection of technical institutions,
withholding or discontinuing grants in respect
of courses and taking such other steps as may
be necessary for ensuring compliance of the
directions of the Council, declaring technical
institutions at various levels and types fit to
receive grants, the constitution of the Council
and its Executive Committee and the Regional
Committees to carry out the functions under
the Central Act, the compliance by the Council
of the directions issued by the Central
Government on questions of policy etc. which
matters are covered by the Central Act. What
is further, the primary object of the Central Act,
as discussed earlier, is to provide for the
establishment of an All India Council for
Technical Education with a view, among others,
to plan and coordinate the development of
technical education system throughout the
country and to promote the qualitative
improvement of such education and to regulate
and properly maintain the norms and
standards in the technical education system
which is a subject within the exclusive
legislative field of the Central Government as is
clear from Entry 66 of the Union List in the
Seventh Schedule. All the other provisions of
the Act have been made in furtherance of the
said objectives. They can also be deemed to
have been enacted under Entry 25 of List III.
This being so, the provisions of the State Act
which impinge upon the provisions of the
Central Act are void and, therefore,
unenforceable. It is for these reasons that the
appointment of the High Power Committee by
the State Government to inspect the
respondent-Trust was void as has been rightly
held by the High Court."
33. The Supreme Court then proceeded to examine the provisions of
Madras University Act. It observed that a comparison of the Central
Act and the Madras University Act shows that as far as institutions
imparting technical education are concerned, there is a conflict
between and overlapping of the functions of the Council and the
University. After enumerating the various matters on which the
Central Act and the University Act were found overlapping, the
Supreme Court observed:
"30. ...................Thus, so far as these matters
are concerned, in the case of the institutes
imparting technical education, it is not the
University Act and the University but it is the
Central Act and the Council created under it
which will have the jurisdiction. To that extent,
after the coming into operation of the Central
Act, the provisions of the University Act will be
deemed to have become unenforceable in case
of technical colleges like the Engineering
Colleges. As has been pointed out earlier, the
Central Act has been enacted by the
Parliament under Entry 66 of the List I to
coordinate and determine the standards of
technical institutions as well as under Entry 25
of List III. The provisions of the University Act
regarding affiliation of technical colleges like
the Engineering Colleges and the conditions for
grant and continuation of such affiliation by the
University shall, however, remain operative but
the conditions that are prescribed by the
University for grant and continuance of
affiliation will have to be in conformity with the
norms and guidelines prescribed by the Council
in respect of matters entrusted to it under
Section 10 of the Central Act."
34. While rejecting the argument that the State Government and the
Madras University has the power to derecognize or disaffiliate an
institution on the ground that it does not fulfill the higher requirements
under the State Act, although it fulfills the requirements under the
Central Act, the Supreme Court observed:
"34. ...................... So also, when the power
to recognise or derecognise an institution is
given to a body created under the Central Act,
it alone can exercise the power and on terms
and conditions laid down in the Central Act. It
will not be open for the body created under the
State Act to exercise such power much less on
terms and conditions which are inconsistent
with or repugnant to those which are laid down
under the Central Act."
35. The earlier decision of the Supreme Court in The Gujarat
University, Ahmedabad Vs. Krishna Ranganath Mudholkar 1963
Supp (1) SCR 112; AIR 1963 SC 703 was referred to by the Supreme
Court. In Krishna Ranganath Mudholkar (supra), the Supreme
Court observed:
" ...........................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 co-ordination and
determination of standards, that would
have paramountcy over the State law by
virtue of the first part of Article 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."
(emphasis supplied)
36. The Supreme Court examined various other decisions rendered
by it, and in Para 41, inter alia, observed as follows:
"41. What emerges from the above discussion
is as follows:
[1] 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 "coordination" either impossible or
difficult. This power is absolute and
unconditional and in the absence of any 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 Center
under Entry 25 of the Concurrent List or to give
effect to Entry 66 of the Union List, it would be
void and inoperative.
[iii] If there is a conflict between the two
legislations, unless the State legislation is
saved by the provisions of the main part of
Clause [2] of Article 254, the State legislation
being repugnant to the Central legislation, the
same would be inoperative.
[iv] Whether the State law encroaches upon
Entry 66 of the Union List or is repugnant to
the law made by the Center under Entry 25 of
the Concurrent List, will have to be determined
by the examination of the two laws and will
depend upon the facts of each case.
[v] When there are more applicants than the
available situations/seats, the State authority is
not prevented from laying down higher
standards or qualifications than those laid
down by the Center or the Central authority to
short-list the applicants. When the State
authority does so, it does not encroach upon
Entry 66 of the Union List or make a law which
is repugnant to the Central law.
[vi] However, when the situations/ seats are
available and the State authorities deny an
applicant the same on the ground that the
applicant is not qualified according to its
standards or qualifications, as the case may
be, although the applicant satisfies the
standards or qualifications laid down by the
Central law, they act unconstitutionally. So also
when the State authorities derecognise or
disaffiliate an institution for not satisfying the
standards or requirement laid down by them,
although it satisfied the norms and
requirements laid down by the central
authority, the State authorities act illegally."
37. In Jaya Gokul Educational Trust (supra) the appellant
institution was granted conditional approval for establishing an
engineering college by the AICTE. The appellant made an application
to the State Government for permission to start the college. Even
though the concerned University forwarded the case of the appellant
for grant of affiliation, the State Government refused permission to the
appellant to establish the institution. The Supreme Court formulated
the two issues arising for its consideration in the following terms:
"(1) Whether in view of the judgment of this
Court in State of Tamil Nadu and Anr. v.
Adhiyaman Educational & Research Institute
and Ors. 1 (1995) 4 SCC 104, the provisions of
the AICTE Act, 1987 occupied the field and it
was not necessary to obtain the further
approval of the Government or other authority?
Whether any statute in the Stale of Kerala if it
required such approval, would be void?
(2) Whether the orders of rejection passed by
the State Government were valid on merits and
whether the University should have granted
further orders to continue the affiliation solely
on the basis of AICTE permission?"
38. After examining the provisions of the AICTE Act as well as the
State Act and the Regulations made thereunder, the Supreme Court
observed:
"22. As held in T.N. case, the Central Act of
1987 and in particular, Section 10(K) occupied
the field relating the "grant of approvals" for
establishing technical institutions and the
provisions of the Central Act alone were to be
complied with. So far as the provisions of the
Mahatma Gandhi University Act or its statutes
were concerned and in particular statute 9(7),
they merely required the University to obtain
the "views" of the State Government. That
could not be characterised as requiring the
"approval" of the State Government. If, indeed,
the University statute could be so interpreted,
such a provision requiring approval of the State
Government would be repugnant to the
provisions of Section 10(K) of the AICTE Act,
1987 and would again be void. As pointed out
in the T.N. case there were enough provisions
in the Central Act for consultation by the
Council of the AICTE with various agencies,
including the State Governments and the
Universities concerned. The State Level
Committee and the Central Regional
Committees contained various experts and
State representatives. In case of difference of
opinion as between the various consultees,
AICTE would have to go by the views of the
Central Task Force. These were sufficient
safeguards for ascertaining the views of the
State Governments and the Universities. No
doubt the question of affiliation was a different
matter and was not covered by the Central Act
but in the T.N. case it was held that the
University could not impose any conditions
inconsistent with the AICTE Act or its
Regulation or the conditions imposed by AICTE.
Therefore, the procedure for obtaining the
affiliation and any conditions which could be
imposed by the University, could not be
inconsistent with the provisions of the Central
Act. The University could not, therefore, in any
event have sought for "approval" of the State
Government.
23. Thus we hold, in the present case that
there was no statutory requirement for
obtaining the approval of the State
Government and even if there was one, it
would have been repugnant to the AICTE Act.
The University statute 9(7) merely required
that the "views" of the State Government be
obtained before granting affiliation and this did
not amount to obtaining "approval". If the
University statute required "approval", it would
have been repugnant to the AICTE Act. Point 1
is decided accordingly."
39. While dealing with the issue as to whether the State
Governments action in refusing to grant permission should be
sustained, the Supreme Court observed that in view of the decision in
the case of Adhiyaman (supra) it is obvious that there is no need to
approach the State Government for its approval for starting the
engineering college. There is no power vested in the State under any
State Law to grant approval and even if it is so vested, it would have
been void. In view of the decision in Adhiyaman (supra), the court
held that this ground of repugnancy alone would be sufficient to quash
the State Government‟s letter refusing to give their approval.
40. The State Government also sought to rely upon a policy decision
not to sanction any affiliation to such colleges either in the private
sector or in the public sector for the year concerned. While rejecting
the argument based on the said policy of the State Government, the
Supreme Court observed:
"27. The so called "policy" of the State as mentioned in
the counter affidavit filed in the High Court was not a
ground for refusing approval. In Thirumuruga
Kirupananda and Variyar Thavathiru Sundara Swamigal
Medical Educational & Charitable Trust v. State of T.N.
which was a case relating to Medical Education and
which also related to the effect of a Central Law upon a
law made by the State under Entry 25 List III, it was held
(at SCC p. 35 para 34) that the "essentiality certificate
cannot be withheld by the State Government on any
policy consideration because the policy in the matter of
establishment of a new medical college now rests with
the Central Government alone".
Therefore, the State could not have any "policy" outside
the AICTE Act and indeed it if had a policy, it should
have placed the same before AICTE and that too before
the latter granted permission. Once that procedure laid
down in the AICTE Act and regulations had been
followed under Regulation 8(4), and the Central Task
Force had also given its favourable recommendations,
there was no scope for any further objection or approval
by the State. We may however add that if thereafter,
any fresh facts came to light after an approval was
granted by the AICTE or if the State felt that some
conditions attached to the permission and required by
the AICTE to be complied with, were not complied with,
then the State Government could always write to AICTE,
to enable the latter to take appropriate action."
41. These decisions have subsequently been followed by the
Supreme Court in State of Maharashtra Vs. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya & Ors. (2006) 9 SCC 1. Extracts
of paragraphs 57 & 63 being relevant, are reproduced hereinbelow:
"57. It is thus clear that the Central Government
has considered the subject of Secondary Education
and Higher Education at the national level. The Act
of 1993 also requires Parliament to consider Teacher
Education System "throughout the country". NCTE,
therefore, in our opinion, is expected to deal with
applications for establishing new B.Ed. colleges or
allowing increase in intake capacity, keeping in view
1993 Act and planned and co-ordinated
development of teacher-education system in the
country. It is neither open to the State
Government nor to a University to consider
the local conditions or apply 'State policy' to
refuse such permission. In fact, as held by this
Court in cases referred to hereinabove, State
Government has no power to reject the prayer
of an institution or to overrule the decision of
NCTE. The action of the State Government,
therefore, was contrary to law and has rightly
been set aside by the High Court."
"63. ..................... As per the scheme of the Act,
once recognition has been granted by NCTE
under Section 14(6) of the Act, every
University ('examining body') is obliged to
grant affiliation to such institution and
Sections 82 and 83 of the University Act do
not apply to such cases." (emphasis supplied)
42. In Bhartiya Vidyapeeth (supra), upon the issuance of a
notification by the Central Government on the advice of the UGC under
Section 3 of the UGC Act, declaring Bhartiya Vidyapeeth as a deemed
University, the same conflict arose as in the present case. Bhartiya
Vidyapeeth allowed admissions to be made in the medical, engineering
and dental colleges upto the academic year 1995-96 under the stream
of the common entrance test conducted by the State authorities.
Thereafter, they decided to keep themselves outside the scope of the
State authority. As Bhartiya Vidyapeeth was sought to be reined in by
the State to follow the admission process controlled by the CET
authority of the State for the year 1996-97, they challenged the
admission rules before the High Court. The High Court dismissed the
writ petition. The Supreme Court reversed that decision. The Supreme
Court referred to its earlier decisions in Krishna Ranganath
Mudholkar (supra), and Adhiyaman (supra), wherein the scope of
the expression "coordination" used in entry 66 of the Union had been
considered. It also referred to its earlier decision in Preeti Srivastava
(Dr.) v. State of M.P. (1999) 7 SCC 120 to hold that the process of
admission falls within the scope of determination of standards. It
referred to its decision Krishna Ranganath Mudholkar (supra) for
the proposition that the entire gamut of admission will fall within the
coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions.
Therefore, the aspect of admission of students in colleges necessarily
stands excluded from the domain of the State Government. The
Supreme Court analysed the provisions of the UGC Act and the
Regulations and guidelines framed by it to examine the boundaries
within which the State Governments cannot step. I have the
advantage of that discussion, which is also relevant for the present
purpose. I, therefore, reproduce the same as below:-
"18. Under Section 3 of the Act, deemed University
status will be given to those institutions that for
historical reasons or for any other circumstances are not
Universities and yet are doing work of a high standard in
specialised academic field compared to a University and
that granting of a University status would enable them
to further contribute to the course of higher education
which would mutually enrich the institution and the
University system. Guidelines for considering proposals
for declaring an institution as deemed to be University
were also issued by the UGC. Under the said guidelines
aspects relating to admission was specifically entrusted
with the UGC and admission could be made only
through a common entrance test on All-India basis. Such
an exercise was intended to maintain a uniform
standard and level of excellence. As we have pointed
out, admission plays a crucial role in maintaining the
high quality of education. And for the proper
maintenance of academic excellence, as intended by
the UGC Act, admissions to deemed University has to be
made under the control of UGC. This further goes to
show that admission procedure to a deemed to be
University is fully occupied by Entry 66 of List I and the
State cannot exercise any powers over admission
procedure.
19. Therefore, the State could not have enacted any
legislation in that regard. If that is so, neither in
exercise of executive power under Article 162 of the
Constitution which extends only to the extent of
legislative power nor in respect of power arising under
the Maharashtra State Universities Act, such rules could
have been prescribed. To the extent the High Court
holds to the contrary, we set aside the order of the High
Court.
20. At this stage we must strike a note of caution in
regard to institutions which are exclusively owned by
the Government and in respect of institutions which
stand affiliated to the University or in respect of
institutions to which either affiliation or grant is made.
Such institutions may be controlled to an extent by the
State in regard to admission as a condition of affiliation
or grant or owner of the institutions. But those
conditions, again if they are in respect of the institutions
of higher education must apply the standard prescribed
by the statutory authorities such as U.G.C., Medical
Council, Dental Council, AICTE, governed by Entry 66 of
List I of the Constitution.
21. Though arguments have been advanced before us
that even if some area is covered under Entry 25 in
relation to admission, inasmuch as the power has been
exercised under Entry 66 which in pith and substance
falls within that scope the State legislation to that
extent has to yield to Central legislation. In this case it
is unnecessary to examine this aspect of the matter as
the institution in question entirely falls within the scope
of the U.G.C. Act. UGC has prescribed the norms of
admission also which include Fees that can be collected
from students and specifically debar collection of
Capitation fee. The University or the State Government
has no role to play either in the matter of recognition,
affiliation or making any financial grants to exercise
powers either as condition thereto or in exercise of
Entry 25 of List II.
22. However, we may advert to the various provisions of
the U.G.C. Act. The Act provides for various aspects
which would be looked after. Section 12 relates to
Powers and Functions of the University Grants
Commission under which 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 co-ordination of
University education and for the determination and
maintenance of standards of teaching, examination and
research in universities and for the purpose of
performing its functions under the Act. It may have
other powers, including power to establish, in
accordance with the regulations made under the Act,
institutions for providing common facilities, services and
programmes for a group of universities or for the
universities in general and maintain such institutions or
provide for their maintenance by allocating and
disbursing out of the fund of the Commission such
grants as the Commission may deem necessary.
23. The Commission is also authorised to frame
regulations under Section 26 of the UGC Act. Section
26(1)(f) in particular defines the minimum standards of
instruction for the grant of any degree by any University
and regulating the maintenance of standards and the
co-ordination of work or facilities in universities and to
regulate the establishment of institutions referred to in
Clause (ccc) of Section 12 and other matters relating to
such institutions. It also provides for fees to be charged
and scales of fees in accordance with which fees may be
charged. It is also empowered under Section 25 to
frame rules for carrying out the purposes of the Act in
general and in particular any function that may be
performed under Section 12 and additional functions
which may be performed by the Commission under
Clause (j) of the Act.
24. Learned counsel appearing for the State very
strenuously urged that the U.G.C. Act is only for the
purpose of making grants to various institutions
governed by and it was not an authority which would
create a University and give a special status to it so as
to keep it out of the control of the University or the
State where it is located. This argument ignores the
provisions of the enactment and particularly those to
which we have adverted to just now, for such
institutions are recognised or granted deemed status for
the maintenance of the standards in the institutions and
for coordinating the teaching in universities which is a
higher purpose than merely giving grants and with that
object, the enactment is made. We do not think it could
be confined only to making of grants as has been
contended by the respondents. This argument,
therefore, needs to be rejected."(emphasis supplied).
43. The Supreme Court also dealt with a similar submission
advanced by the State of Maharashtra, as has been advanced by the
Government of NCT of Delhi in the present case, namely, that the
institutions had originally been started in the State of Maharashtra to
cater to the local needs and, therefore, now if they are being given
deemed University status, they would no longer serve the local needs,
such need having been recognized by the Government by granting an
essentiality certificate. This argument was rejected by the Supreme
Court in the facts of that case.
44. The distinction brought out by learned counsel for the
respondent State is that whereas in Bhartiya Vidyapeeth (supra) the
State of Maharashtra had itself strongly recommended the case of
Bhartiya Vidyapeeth to be granted the status of a deemed University
when it was so consulted, in the present case, before making the
declaration under Section 3 of the UGC Act in respect of petitioner
nos.3 & 4, the Government of NCT of Delhi was not consulted and no
consent has been given by the State Government to the issuance of
the declaration under Section 3 of the UGC Act in respect of petitioner
Nos.3 & 4. Para 26 of the decision in Bhartiya Vidyapeeth (supra) is
particularly relied upon by learned counsel for the respondent State,
which reads as under: -
"26. He further highlighted that these institutions
originally started in the State of Maharashtra to cater to
the local needs and therefore now if they are being
given deemed status it will no longer serve the local
needs, such need having been recognized by the
Government by granting essentiality certificate. It would
not be appropriate for the State to contend that even
though the institution has now attained the deemed
University status it is not beyond the clutches of the
State in the matter of admissions of the students to
such colleges as before granting of the deemed
University status, the State was indeed consulted and
the State conveyed its strong recommendation for grant
of such status. Particularly when such status has been
granted after consulting the Government concerned, we
do not think that such argument on the basis of local
needs should be accepted. Faced with this position,
learned counsel, of course, stated that the problem
posed by him may have to be attended to by the
authority concerned."
45. The question that, therefore, arises for my consideration is
whether, the fact that the Government of NCT of Delhi had not been
consulted, and that it had not given its consent or recommendation for
the issuance of a notification under Section 3 of the UGC Act in respect
of petitioner Nos.3 & 4, would entitle the Government of NCT of Delhi
to refuse to grant its NOC for disaffiliation of petitioner Nos.3 & 4
institutions from the respondent No.1 University.
46. The power to make a declaration under Section 3 of the UGC Act
thereby conferring the status of a deemed University on an institution
of higher education vests in the Central Government. The said power
is exercised on the advise of the UGC. As noticed by the Supreme
Court in Bhartiya Vidyapeeth (supra), deemed University status is
given to those institutions that for historical reasons, or for any other
circumstances are not universities and yet are doing work of a high
standard in specialized academic field comparable to a University.
Such a status is granted to enable the institution to further contribute
to the course of higher education which would mutually enrich the
institution and the University system. Section 3 of the UGC Act does
not mandate that the Government of the State in which the institution
(which is proposed to be declared as a deemed University under
Section 3 of the UGC Act) is situated has to be consulted, or that the
State Government has to give its consent before such a declaration
under Section 3 is made in respect of such an institution. It is entirely
the decision of the Central Government on the advice of the UGC to
make a declaration under Section 3, and the State Government has no
role to play in that respect. This being a position, in my view, it makes
no difference whether or not the State Government has been consulted
or its recommendation sought in respect of an institution situated
within the State, before making a declaration under Section 3 of the
UGC Act.
47. Once a declaration under Section 3 has been made, the State
Government on account of its own local and parochial considerations
cannot prevent the flight of the institution from the State level to the
National level. The fact that the State may have genuine concerns
(keeping in view the interests of the local population) when an
institution gets transformed from a mere locally affiliated institution to
a deemed University is a different matter. The State may be able to
justify extracting its pound of flesh from an institution, which, to begin
with receives the patronage of the State Government when it is
established and also follows the policies and guidelines framed by the
State Government, but later is declared to be a deemed University
under Section 3 of the UGC Act and is therefore freed from the clutches
of the State Government in the matter of, inter alia, allocation of seats.
However, once a declaration is made under Section 3, the State
Government cannot seek to block the declaration from taking effect,
and continue to exercise its authority over the institution in respect of
matters which are specifically provided for under the UGC Act, and by
the UGC under its regulations and guidelines.
48. I also find merit in the submission of learned senior counsel for
the petitioners that the approach of the respondent State Government
is parochial, inasmuch as the impugned decision of the respondent
State Government is coloured by its stated concern for the citizens of
Delhi region and the respondent State Government is ignoring the
constitutional scheme and overstepping the limits on its own authority
and jurisdiction. If the approach of the respondent State Government
were to be sanctioned, it would mean that no institution of higher
education and learning which has attained a sufficiently high level of
excellence in the opinion of the Central Government and the UGC,
anywhere in the country, would be entitled to be declared as a deemed
University under Section 3 of the UGC Act, since every such institution
would be situated within the boundaries of one or the other
"constituent" States/Union Territories of the Indian Union. The whole
objective of recognizing institutions of higher education and learning
(which have attained excellence and high standard in specialized
academic fields comparable to a University) as deemed University, is
to enable such an institutions to further contribute to the course of
higher education which would mutually enrich the institution and the
University system. This objective would be defeated if, on such like
considerations, the institutions are permitted to be held back by the
State Government on account of its own local concerns. An institution
in respect of which a declaration under Section 3 of the UGC Act is
made, attains the freedom and flexibility enjoyed by a University,
particularly the right of conferring or granting its own degrees which
may be specified by the UGC by notification in the Official Gazette with
the approval of the Central Government (see Section 22 of the UGC
Act). The State Government cannot, on account of its own local and
parochial considerations prevent the transformation of an institution
within the State into a deemed University, when the Central
Government, on the advice of the UGC forms the opinion that such an
institution for higher education is deserving of being treated as a
deemed University under Section 3 of the UGC Act. An institution
which is declared as a deemed University serves not only the interest
of the citizens of the State in which it is located, but also serves a
higher purpose, namely, of strengthening the University System in the
country and of rendering higher education and awarding recognized
degrees of its own, to students selected on the basis of a competitive
examination on All India basis.
49. The Supreme Court in Dr. Pradeep Jain and Others v. Union
of India and Others, (1984) 3 SCC 654 commented on a similar
parochial approach of the State Governments when they sought to
make wholesale reservations on the basis of "domicile" or residence
requirement within the State or on the basis of institutional preference
for students who have passed the qualifying examination held by the
University or the States excluding all other students not satisfying this
requirement, regardless of merit. The Court held this approach to be
unconstitutional and observed:-
"10...................Now, the primary imperative of
Article 14 is equal opportunity for all across the
nation for education and advancement and, as
pointed out by Krishna Iyer, J. in Jagdish Saran
v. Union of India, (1980) 2 SCR 831 "this has
burning relevance to our times when the
country is gradually being „broken up into
fragments by narrow domestic walls‟ by
surrender to narrow parochial loyalties." What
is fundamental, as an enduring value of our
polity is guarantee to each of equal opportunity
to unfold the full potential of his personality.
Any one anywhere, humble or high, agrestic or
urban, man or woman, whatever be his
language of religion, place of birth or
residence, is entitled to be afforded equal
chance for admission to any secular
educational course for cultural growth, training
facility, speciality or employment. It would run
counter to the basic principle of equality before
the law and equal protection of the law if a
citizen by reason of his residence in State A,
which ordinarily in the commonality of cases
would be the result of his birth in a place
situate within that State, should have
opportunity for education or advancement
which is denied to another citizen because he
happens to be resident in State B. It is
axiomatic, that talent is not the monopoly of
the resident of any particular State; it is more
or less evenly distributed and given proper
opportunity and environment, every one has a
prospect of rising to the peak. What is
necessary is equality of opportunity and that
cannot be made dependent upon where a
citizen resides. If every citizen is afforded equal
opportunity, genetically and environmentally,
to develop his potential he will be able in his
own way to manifest his faculties fully leading
to all round improvement in excellence. The
philosophy and pragmatism of universal
excellence through equality of opportunity for
education and advancement across the nation
is part of our founding faith and constitutional
creed. The effort must, therefore, always be to
select the best and most meritorious students
for admission to technical institutions and
medical colleges by providing equal
opportunity to all citizens in the country and no
citizen can legitimately, without serious
detriment to the unity and integrity of the
nation, be regarded as an outsider in our
constitutional set up. Moreover, it would be
against national interest to admit in medical
colleges or other institutions giving instruction
in specialities, less meritorious students when
more, meritorious students are available,
simply because the former are permanent
residents or residents for a certain number of
years in the State while the latter are not,
though both categories are citizens of India.
Exclusion of more meritorious students on the
ground that they are not resident within the
State would be likely to promote sub-standard
candidates and bring about fall in medical
competence, injurious in the long run to the
very region.................."
50. In Bhartiya Vidyapeeth (supra) the Supreme Court shut out the
argument of the State of Maharashtra with regard to the local needs
within the State by confronting the State of Maharashtra with its own
strong recommendation for grant of a deemed University status to
Bhartiya Vidyapeeth. That cannot be taken to mean that without the
consent or recommendation of the State Government, the declaration
under Section 3 of the UGC Act cannot be made, or that the State
would be entitled to enforce its own directions and regulations framed
under a local law to regulate the functioning of the deemed University
institutions of higher education.
51. The submission of learned counsel for the respondent State that
the notification dated 14.02.2007 is conditional upon the disaffiliation
of petitioner Nos.3 & 4 from respondent No.1 University, in my view, is
fallacious. A perusal of the notification dated 14.02.2007 shows that
the same is clear and categoric, inasmuch as, it states that "the
Central Government on the advice of the UGC do hereby declare that
the following two institutions are included under the ambit of Bhartiya
Vidyapeeth deemed to be University Pune as its constituent
institutions". The notification does not state that the said declaration
"is subject to" the decision of the State Government or the respondent
University whether or not to grant disaffiliation to petitioner Nos.3 & 4.
The question left undetermined by the said notification is not whether
petitioner Nos.3 & 4 would ultimately be permitted to enjoy the status
of a deemed University by respondent Nos. 1 & 2. The only question
left undetermined is about the timing of the said declaration taking
effect. This is also clear from clause 5 of the said notification which
lays down the conditions subject to which the declaration is made.
Sub-clause (c) thereof states that "the deemed to be University"
institute shall take immediate steps for disaffiliation of the institutions
concerned from the respondent University. There is no condition to be
found in this notification to show that the declaration is subject to the
grant of approval/No Objection Certificate by the Government of NCT of
Delhi.
52. The purpose of declaring petitioner Nos.3 & 4 as deemed
University from the date of disaffiliation of these institutions from
respondent No.1 is not difficult to fathom. As petitioner Nos.3 & 4
institutions have been affiliated with respondent No.1 since their
inception, the sudden disaffiliation, with immediate effect when the
notification dated 14.02.2007 was issued would have caused hardship
to, and confusion amongst the students and prospective candidates
seeking admission to petitioner Nos.3 & 4 institutions. The intent of
the Central Government while issuing the notification dated
14.02.2007 becomes clear upon perusal of sub-Clauses (d) & (e) of
Clause 5, which reads as follows:
"(d) Bharati Vidyapeeth shall award degrees, etc
in respect of the courses run by the
institutions mentioned in para 1 of the
notification only to those students who are
admitted/enrolled with them subsequent to
the date of this notification.
(e) As for those students who are already
enrolled with the institutions mentioned in
para 1 of the notification, prior to the date of
this notification, the present affiliating
University viz. Guru Gobind Singh
Indraprastha University, Delhi shall have to
agree to examine and grant degrees to them
on successful completion of the
courses/programmes they are pursuing in
these institutions presently."
53. From the aforesaid, it is clear that the students admitted to the
petitioner Nos.3 & 4 institutions from the date of disaffiliation, would
be awarded degrees by Bhartiya Vidyapeeth, while those students who
were admitted to the courses run by the said petitioner institutions
while it continue to remain affiliated with respondent No.1 University
would complete their courses/programmes as prescribed by
respondent No.1, undertake the examinations conducted by
respondent No.1 and be awarded degrees by respondent No.1
University.
54. Though I agree with the interpretation put forth by the
respondents to Section 3 of the UGC Act, that the said Section
postulates the conferment of deemed University status on institutions
and not on a Trust or Society which manages such institutions, in my
view, the interpretation sought to be given to the notification dated
14.02.2007 issued by the Central Government under Section 3 of the
UGC Act is not correct. The Central Government issued a notification
dated 26.04.1996 under Section 3 of the UGC Act, whereby 12 specific
institutions of Bhartiya Vidyapeeth, Pune were declared to be deemed
universities. It was not that Bhartiya Vidyapeeth, Pune, the registered
trust was declared to be a deemed University and by virtue of that
declaration the 12 institutions being run by it came to be declared as
deemed University. Similarly, by the notification dated 14.02.2007 the
declaration made by the Central Government is to the effect that
petitioner Nos.3 & 4 have also been declared to be deemed
universities for the purpose of the UGC Act. The notification, no doubt,
could have been better worded and does seem to suggest that
Bhartiya Vidyapeeth, Pune, is a deemed University having constituent
institutions to which petitioner Nos.3 & 4 have now been added as
constituent institutions. However, the intent with which, and the
purpose for which the said notification has been issued leaves no
manner of doubt that the same has been issued in exercise of
statutory power, derived from Section 3 of the UGC Act, which power is
to declare institutions for higher education as deemed universities.
Pertinently the UGC also issued a notification on 13.4.2007 in tune with
the notification dated 14.2.2007 issued by the Central Government.
This shows that there was sufficient compliance of the requirements of
Section 3 of the UGC Act while issuing the notification dated 14.2.2007
declaring petitioner nos. 3 and 4 as deemed universities. I am,
therefore, of the view that the poor phraseology used in the
notification dated 14.02.2007 does not impinge on the declaration of
petitioner Nos.3 & 4 as deemed University under Section 3 of the UGC
Act.
55. No doubt the petitioners had submitted an affidavit dated
02.08.1999 with the respondent State Government, inter alia,
affirming:
"1. That the society will follow all the
norms/guidelines of AICTE and directions of the
Govt. of Delhi including criteria for
admission/employment of qualified
staff/governing body/ fee structure etc."
"4. The society/institute shall charge
students, fee not exceeding the amount
stipulated by the AICTE/Directorate of Training
and Technical Education, as applicable."
56. It is also a fact that the respondent State Government had
conveyed its decision to recommend the case of the petitioners for
allotment of 5 acres of land to the DDA for setting up the institutions
wherein substantially the same conditions, as aforesaid, were
reiterated. While making the recommendation of the petitioners‟ case
for allotment of land on 02.08.1999 to the DDA, once again the same
conditions, apart from others, were reiterated. Based on the said
recommendations from the respondent State Government, the DDA
issued allotment letter to the petitioners on 15.10.1999 making
allotment of land measuring 14862.35 sq. meters. However, the
aforesaid conditions were not included amongst the various conditions
imposed by the DDA while making the said allotment of land. I may
also refer to the DDA (Disposal of Nazul Land) Rules 1981 (as in force
prior to their amendment in the year 2006), whereunder the allotment
of land was made by the DDA to the petitioners. Rule 5 enables the
DDA to allot nazul land to, inter alia, colleges and universities for
remunerative, semi-remunerative or un-remunerative purposes at the
premia and ground rent at such rates as the Central Government may
determine from time to time. Rule 20 states that no allotment of nazul
land to public institutions referred to Rule 5 shall be made unless:
"(a) according to the aims and objects of that
public institution,
(i) it directly subserves the interests of the
population of the Union Territory of Delhi;
(b) ....................
(c) .....................
(d) .....................
(e) allotment to such institution is sponsored or
recommended by a Department of the Delhi
Administration or a Ministry of the Central
Government."
57. So far as condition Nos. (a) (i) above is concerned, it is clear that
the petitioner institutions satisfied the aforesaid condition prescribed in
the Nazul Land Rules inasmuch as, when allotted was sought and
made, these institutions were directly subserving the interest of the
population of the NCT of Delhi. The allotment having fructified into a
perpetual lease would thereafter be governed by the terms of the
lease. It is nobody‟s case that the petitioner institutions upon being
declared as deemed universities have breached any term of the
perpetual lease executed by the DDA. If it were so, the DDA would not
have granted its no objection to petitioner nos. 3 and 4 upon becoming
deemed universities.
58. From condition No. 5 (e) above it follows that the
recommendation from the respondent State Government, or in the
alternative, of the concerned department of the Central Government
was essential to enable the petitioners to seek allotment of Nazul land
under Rule 5 of the DDA (Nazul Land) Rules. To obtain the
sponsorship/recommendation of its case, the petitioners furnished an
undertaking to "follow all norms/guidelines of AICTE and directions of
the Government of Delhi including criteria for admission/ employment
of qualified staff/governing body/fee structure etc." and that the
petitioner institutions "shall charge students, fee not exceeding the
amount stipulated by the AICTE/Directorate of Training and Technical
Education, as applicable". Without the aforesaid undertaking the
respondent State Government may not have recommended/ sponsored
the case of the petitioners for allotment of nazul land by the DDA.
59. The undertaking furnished by the petitioner, however, has to
be understood in the light of the situation as it existed when the same
was furnished. At the relevant time, the petitioner Nos.3 & 4
institutions were being established as institutions affiliated to
respondent No.1 University primarily to cater to the local needs of the
citizens of Delhi region. The undertaking given by the petitioners can
possibly not be interpreted to mean that the petitioners undertook to
continue to remain bound by the aforesaid undertaking in the
eventuality of they being declared as deemed universities under
Section 3 of the UGC Act at a later point of time. Even if the
petitioners had furnished an undertaking to the effect that they would
continue to remain so bound irrespective of their being declared as
deemed universities under Section 3 of the UGC Act, such an
undertaking would have been in the teeth of Entry 66 of the Union List
and the UGC Act and the Guidelines, Rules and Regulations framed by
the UGC. By adopting such a process the respondent State
Government could not have nullified the effect of the UGC Act, the
Rules, Regulations and Guidelines framed by the UGC. Once the
petitioner Nos.3 & 4 institutions are declared as deemed universities,
the said undertaking no long remains enforceable against them after
their disaffiliation takes effect. These undertakings were relevant and
are enforceable only till so long as the petitioner institutions remain as
mere institutions affiliated to respondent No.1 University.
60. So far as the DDA is concerned, as noticed hereinabove in the
allotment letter issued by it, the DDA has not imposed any such
condition as was stipulated by the respondent State Government in its
letter of recommendation. Moreover, admittedly the DDA vide letter
dated 17.10.2007 has intimated its no objection to petitioner Nos.3 & 4
being declared as deemed University subject to the petitioners
furnishing an undertaking that they will abide by the terms and
conditions of the allotment letter as well as the lease deed.
61. Therefore, in the light of the aforesaid discussion, if the
respondent State Government indeed has a legal right to demand the
petitioners to pay any amount as compensation on account of the fact
that petitioner Nos.3 & 4 have been declared as deemed Universities
and are therefore no longer in a position to abide by their undertaking
given to the respondent State Government, it shall be open to the
respondent State Government to take such measures as it may deem
appropriate. However, as aforesaid, the effect of the declaration of the
petitioner no.3 and 4 institutions as deemed universities by the Central
Government cannot be whittled down. In my view, the insistence by
the respondent State Government upon extracting the undertaking as
set out in para 7 above, as a condition for issuance of its NOC for
disaffiliation of respondent Nos.3 & 4 from respondent No.1 University,
is in direct conflict with the powers of the UGC to frame and enforce
regulations and guidelines that it may have framed. The same is
impermissible in law, and the respondent State Government cannot
refuse to give its NOC on account of the petitioners refusal to or
inability in furnishing the demanded undertaking.
62. Reliance placed by the respondents on the Act of 2007 is also of
no avail in the facts of the present case. The Act of 2007 cannot be
taken to be applicable to such institutions, which by themselves have
acquired the status of deemed University. "Institution" under the Act
of 2007 is defined to mean "a college or institution, aided or unaided,
affiliated to a University, imparting education" in the various
disciplines enumerated in Section 3(c) of the said Act. Therefore, a
deemed University cannot be considered to be an „institution" within
the meaning of the Act of 2007. Moreover, the Act of 2007, as is
evident from its preamble itself seeks to "provide for prohibition of
capitation fee, regulation of admission, fixation of non-exploitative fee,
allotment of seats to Scheduled Castes, Scheduled Tribes and other
socially and economically backward classes and other measures to
ensure equity and excellence in professional education in the National
Capital Territory of Delhi and for matters connected therewith or
incidental thereto". Section 5 seeks to prohibit the collection and
charging of capitation fee for granting admission or promotion to
students by institutions. Section 10 provides that no institution shall
collect any fee over and above the fee determined by the fee.
Regulatory Committee and notified by the Government of the NCT of
Delhi. Section 13 provides that an institution shall make admission
through a Common Entrance Test to be conducted by the designated
agency in the prescribed manner. Under Section 14, any admission
made in contravention of the provisions of the Act or the Rules made
thereunder shall be void. Under Section 17, the Government is
empowered to issue directions from time to time to any institution,
consistent with the Act and the rules made thereunder, to carry out the
purpose of the Act and to give effect to the provisions of the Act and
the Rules or orders made thereunder. The management of the
institution is bound to comply with such directions. Section 18 creates
offences and penalties.
63. The provisions of the Act of 2007, it would therefore be seen, are
clearly overlapping with the UGC Act, the Rules and Regulations and
guidelines framed thereunder. Therefore, even if it were to be
assumed that petitioner nos. 3 and 4 could be considered as
"institutions" within the meaning of Section 3(l) of the Act of 2007,
upon their being declared as deemed Universities, the petitioner
institution would not be bound by the provisions of the Act of 2007 in
any event, in view of it being a State enactment entrenching upon the
areas covered by a Central Law. No doubt, the Act of 2007 would
continue to operate in respect of other institutions which fall within the
definition of the expression „institution‟ contained in Section 3(l) of the
Act of 2007.
64. So far as the so-called policy decision taken in the office of the
Principal Secretary to the Chief Minister on 6.2.2007 is concerned, in
my view the same cannot be sustained since the same is incompetent
and in the teeth of Entry 66 of the Union List, the UGC Act and the
Rules, regulations and guidelines framed thereunder. The argument
based on Section 5 (2) of the Delhi University Act, in my view, also has
no merit. The declaration made by the Central Government under
Section 3 of the UGC Act meets the requirement of Section 5 of the
Delhi University Act.
65. The upshot of the aforesaid discussion is that the respondent
State Government has no authority to require petitioner nos. 3 and 4 to
give the undertaking as desired by it as a condition for granting its no
objection to the disaffiliation of petitioner nos. 3 and 4 from the
respondent University. In fact, upon the issuance of the notification
dated 14.02.2007, the respondent State Government and the
respondent University had no option but to allow the disaffiliation of
petitioner nos. 3 and 4. All that could have been considered by them
was the timing of the said disaffiliation so as to avoid inconvenience or
confusion amongst the students / candidates admitted to or seeking
admission to petitioner no. 3 and 4 institutions.
66. For all the aforesaid reasons, in my opinion, these petitions are
bound to succeed and the action of the respondent State Government
in refusing to grant the no objection certificate for the purpose of
disaffiliation of petitioner nos. 3 and 4 institutions from respondent no.
1 University deserves to be quashed since the same is incompetent
and is also founded upon reasons unjustified in law. Accordingly, the
impugned letter bearing no.196/159/BV/2002-03/DDTE dated
14.05.2008 issued by respondent no. 2 Government of NCT of Delhi is
quashed. I may note that despite the issuance of the notification
under Section 3 of the UGC Act on 14.02.2007, declaring petitioner no.
3 and 4 as deemed universities, for two academic years i.e. 2007-08
and 2008-09, these institutions have not been able to function as
deemed Universities due to the acts and omissions of respondent Nos.
1 & 2. I, therefore, issue a writ of mandamus directing respondent nos.
1 and 2 to pass formal orders granting disaffiliation to petitioner nos. 3
and 4 within two weeks from today so that the said petitioners are in a
position to function as deemed Universities from the academic session
2009-10.
67. With the aforesaid directions, the Writ Petitions stand disposed
off.
(VIPIN SANGHI)
JUDGE
February 20, 2009
as/rsk/dp
