Delhi High Court
State Of Haryana vs Global Educational & Social Trust ... on 27 August, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th August, 2012
+ LPA 756/2011
STATE OF HARYANA ..... Appellant
Through: Mr. Neeraj K. Jain, Sr. Adv. with Ms.
Anubha Agrawal, Adv.
Versus
GLOBAL EDUCATIONAL & SOCIAL
TRUST & ORS ..... Respondents
Through: Ms. Jyoti Singh, Sr. Advocate with Mr.
Yashpal Rangi & Saahila Lamba, Advs. for
R-1.
Mr. Amitesh Kumar, Adv. for AICTE.
Mr. Mukul Talwar, Adv. for GGSIP
University.
AND
+ W.P.(C) 8394/2011
SETH POKHARMAL EDUCATIONAL
SOCIETY AND ANR ..... Petitioners
Through: Mr. Rajiv Bansal, Adv.
Versus
GGSIP UNIVERSITY AND ORS ..... Respondents
Through: Mr. Mukul Talwar, Adv. for GGSIP
University.
Mr. Amitesh Kumar, Adv. for AICTE
Mr. Najmi Waziri, Adv. for GNCTD.
AND
+ W.P.(C) 1566/2012
GURU PREMSUKH MEMORIAL
COLLEGE OF ENGINEERING & ANR ..... Petitioners
Through: Mr. R.K. Saini with Mr. Sitab Ali
Chaudhary, Advs.
Versus
GGSIP UNIVIERISTY & ORS. ..... Respondents
Through: Mr. Mukul Talwar, Adv. for GGSIP
University.
Mr. Amitesh Kumar, Adv. for AICTE.
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
Page 1 of 26
Mr. Najmi Waziri, Adv. for GNCTD.
AND
+ W.P.(C) 1982/2012
JAGANNATH GUPTA MEMORIAL
EDUCATIONAL SOCIETY & ANR ..... Petitioners
Through: Mr. R.K. Saini with Mr. Sitab Ali
Chaudhary, Advs.
Versus
GGSIP UNIVERSITY & ORS ..... Respondents
Through: Mr. Mukul Talwar, Adv. for GGSIP
University.
Mr. Amitesh Kumar, Adv. for AICTE.
Mr. Najmi Waziri, Adv. for GNCTD.
Mr. Anil Mittal & Mr. Amritansh Batheja,
Advs. for R-4.
AND
+ W.P.(C) 2090/2012
DALAL GLOBAL TRUST ..... Petitioner
Through: Mr. M.C. Dhingra and Mr. Sumit Dalal &
Ms. Ruchika Bhan, Advocates.
Versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY AND ORS ..... Respondents
Through: Mr. Mukul Talwar, Adv. for GGSIP
University.
Mr. Amitesh Kumar, Adv. for AICTE.
AND
+ W.P.(C) 2416/2012
MANAGEMENT EDUCATION & RESEARCH INSTITUTE
(ASANDHA) & ANR ..... Petitioners
Through: Mr. R.K. Saini with Mr. Sitab Ali
Chaudhary, Advs.
Versus
GGSIP UNIVERSITY & ORS ..... Respondents
Through: Mr. Mukul Talwar, Adv. for GGSIP
University.
Mr. Amitesh Kumar, Adv. for AICTE.
Mr. Najmi Waziri, Adv. for GNCTD.
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
Page 2 of 26
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The common question for adjudication in all these proceedings is, the
validity of the requirement (in Clause 3(ii)(b) of Statute 24 of Guru Gobind
Singh Inderprastha University (GGSIPU) of a „No-Objection Certificate‟
(NOC) from the concerned State Government, for affiliation with GGSIPU.
The contention of the Colleges/Institutions parties to these proceedings and
having their campuses, though in the National Capital Region (NCR) but in
the States of Haryana or Uttar Pradesh, and seeking affiliation with
GGSIPU, is that no such NOC from the Governments of the States of
Haryana or Uttar Pradesh can be insisted upon by GGSIPU. Alternatively,
they contend that the said State Governments cannot withhold such NOC
and seek mandamus for issuance thereof. Of course, the States of Haryana
and Uttar Pradesh and GGSIPU contend such NOC to be essential; the State
Governments also cite their own local laws to contend that they are justified
in refusing such NOC.
2. Having highlighted the legal issue, the factual matrix in each case, in
so far as relevant, may be stated.
2A. The LPA No.756//2011 impugns the judgement dated 18th August,
2011 of the learned Single Judge allowing W.P.(C) No. 5218/2011 preferred
by the Institution, respondent therein, by directing the State of Haryana to
issue NOC in favour of the said institution for starting MBA course from the
academic session 2011-2012 at its campus situated in Haryana, to enable
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
GGSIPU to grant affiliation to the said Institution. Notice of the appeal was
issued and by way of interim arrangement, admissions were permitted as
provisional affiliate of GGSIPU, on the students so admitted furnishing an
undertaking making the said admission subject to final adjudication in the
appeal.
2B. W.P.(C) No. 8394/2011, 1566/2012, 1982/2012, 2416/2012 have
been filed impugning the requirement aforesaid of Statute 24 of GGSIPU.
2C. W.P.(C) No. 2090/2012 is also filed impugning refusal of GGSIPU to
grant affiliation for non production of such NOC by the State Government
and though was pending before the learned Single Judge but was transferred
to this Bench for the reason of entailing the same issue as in the LPA and
the other writ petitions.
3. The judgment under appeal in LPA No.756/2011 is predicated on the
statement made by the then counsel for the State of Haryana before the
learned Single Judge that the State had no policy for issuance of such NOC.
The learned Single Judge also relied on judgment dated 1st September, 2003
of the Division Bench of this Court in CWP No. 3065/2008 titled Charanjiv
Charitable Trust Vs. AICTE. It is the case of the State of Haryana that
neither was there any authorization for such statement to be made nor is the
said statement tenable in law. Be that at it may, since the same question is
arising for consideration in the other matters also and is of considerable
importance, we have heard the counsels de hors the statement made.
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
4. The part of Statute 24 of the GGSIPU which is impugned, is as
under:-
"3. Essential conditions of affiliation of colleges &
institutions.
(ii) No college or institution shall be admitted to the
privileges of the University unless-
(b) it has been granted a no-objection certificate by the
concerned state government and recognized by the
appropriate statutory authority, wherever applicable, for
the subjects and courses of study for which affiliation is
being sought."
5. The counsels for the Colleges/Institutions seeking affiliation to
GGSIPU have argued:-
A. That each of them have established their respective
Colleges/Institutions at a huge expense on land and building
and other infrastructure;
B. That each of them has been granted approval by the All India
Council for Technical Education (AICTE);
C. That the AICTE prior to granting approval seeks the
views/consults the University with which affiliation is proposed
as well as the Government of the State where the
College/Institution is situated - it is thus argued that the stage
for the University or the State Government to oppose, is before
the AICTE and once AICTE approval is granted, the State
Government ought to be deemed to have issued the NOC and
the University cannot withhold affiliation for the reason of such
an NOC having not been issued;
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
D. Principle of estopple is invoked by contending that the
Colleges/Institutions having altered their position, the
concerned State Governments and GGSIPU are estopped from
withholding NOC and from denying affiliation on the said
ground respectively. Reliance in this regard is placed on M/s.
Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar
Pradesh (1979) 2 SCC 409 and M/s. Cauvery Coffee Traders,
Mangalore Vs. M/s Hornor Resources (International) Co.
Ltd. (2011) 10 SCC 420, on St. Johns Teachers Training
Institute Vs. Regional Director, National Council for Teacher
Education (2003) 3 SCC 321 on the aspect of deemed approval
and on Cauvery Coffee Traders, Mangalore (supra) on 'the
duty to speak';
E. Reference is invited to the judgment dated 21st February, 2007
of a Single Judge of this Court in W.P.(C) No. 13751/2006
titled Aditya College of Pharmacy & Science Vs. Guru
Gobind Singh I.P. University holding that once AICTE grants
approval, the question of affiliation has to be considered by the
University without insisting upon factors which are
inconsistent with the AICTE Act or its Regulations and that
Statute 24 of the GGSIPU is applicable only to the extent not
inconsistent with the said Act. Reliance is also placed on Mata
Sudarshan Tilak Raj Dhawan Educational Trust, Panchkula
Vs. State of Haryana AIR 2003 P&H 39 striking down the
requirement for NOC;
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
F. Attention is also invited to judgment dated 21st July, 2008 of a
Single Judge of this Court in W.P. (C) No. 4244/2008 titled
Trinity Institute of Higher Education Vs. Govt. NCT of Delhi
MANU/DE/1007/2008 holding that the State Government has
no power to refuse NOC once recognition had been granted by
the National Council for Teachers Education (NCTE) and
directing GGSIPU to grant affiliation without insistence on the
NOC - on the basis thereof it is argued that once approval of
AICTE is obtained, there can be no requirement for obtaining
NOC from the State Government. It is further informed that
though LPA No.542/2008 was preferred by GGSIPU against
the said judgment but was withdrawn without insisting on
compliance of Statute 24;
G. that GGSIPU has been established under The Indraprastha
Vishwavidyalaya Act, 1998 (GGSIPU Act)- under Section 4 of
the said Act, GGSIPU exercises power over the entire NCR as
defined in the National Capital Region Planning Board Act,
1985 (NCR Act) and not merely over Delhi;
H. That no distinction can thus be made by GGSIPU between
Colleges/Institutions located in Delhi and outside Delhi, in the
NCR;
I. That GGSIPU, in the past, has granted affiliation to several
institutions located in Haryana and Noida falling in the NCR;
J. That the requirement of such NOC of the State Government as
a condition for affiliation is bad - Reliance in this regard is
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
placed on Jaya Gokul Educational Trust Vs. The
Commissioner & Secretary to Government Higher Education
Department, Thiruvananthapuram (2000) 5 SCC 231;
K. That the refusal of the State of Haryana to issue such NOC is
without any reasons, whimsical and arbitrary;
L. That the Government of Haryana, in the past has given such
NOCs to five institutions who have obtained affiliation to
GGSIPU and is now arbitrarily denying NOCs;
M. That the Societies which have set up the Colleges/Institutions
seeking affiliation are Delhi based and want to grow in Delhi
only but have been forced to set up Colleges/Institutions in
Haryana/Uttar Pradesh for the reason of scarcity of land in
Delhi;
N. That the Colleges/Institutions affiliated to the Universities of
the States of Haryana or Uttar Pradesh do not attract and are
unable to fill even their sanctioned strength; on the contrary,
colleges affiliated to GGSIPU are in demand and are
overflowing with students;
O. Reliance is also placed on judgment dated 7th August, 2012 of a
Division Bench of the Kerala High Court in WP(C) No.
12323/2012 (M) titled St. Joseph's Hospitals Trust Vs. The
Kerala University of Health Science;
P. Reference is also made to the judgment dated 9th August, 2006
of Division Bench of the Madras High Court in W.A.
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
No.1940/2002 titled The State of Tamil Nadu Vs. V.S. B.
Educational Trust MANU/TN/9615/2006. The educational
institutions therein were situated in the State of Tamil Nadu
and were seeking affiliation to the University in the State of
Andhra Pradesh. NOC in this regard was withheld by the
Government of the State of Tamil Nadu. Relying on Jaya
Gokul Educational Trust and on amendment w.e.f. 28th
November, 2005 of the AICTE Regulations doing away with
the requirement of the NOC of the concerned State
Government, it was held that the University could not insist
upon the NOC.
6. The senior counsel for the State of Haryana has argued:-
I. That Section 4A of the Maharshi Dayanand University Act,
1975 (Haryana Act 25 of 1975) prohibits any other person or
Institution from conferring any degree, diploma or certificate
within the territorial jurisdiction of the said University and
contravention of the said provision is an offence punishable
with imprisonment of upto two years;
II. That all the subject Colleges/Institutions are situated within the
territorial jurisdiction of Maharshi Dayanand (MD) University
and The MD University Act does not allow the Government of
the State of Haryana to allow any College/Institution in the said
territory to affiliate with GGSIPU by issuing a NOC therefor;
III. That the NOCs earlier granted to few Institutions are in
violation of MD University Act;
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
IV. That though a Notification dated 13th September, 1999 was
issued by the Education Department of the Government of
State of Haryana (in exercise of powers under Section 4(1) of
the MD University Act) enabling the State Government to, on
merits and demerits of each case, grant NOC to a
College/Institution situated within the territorial jurisdiction of
MD University but within the NCR, for affiliation with
GGSIPU (and on which Notification reliance was placed by the
counsels for Colleges/Institutions) but was amended vide
subsequent Notification dated 25th February, 2002 which has
no such provision allowing the Government to issue NOC for
affiliation with GGSIPU;
V. That the GGSIPU Act of the Govt. of National Capital
Territory of Delhi (GNCTD) enabling GGSIPU to exercise
powers outside Delhi also, in the NCR, is in contravention of
Article 245 of the Constitution of India. It is contended that
GNCTD could not have legislated for areas outside Delhi;
VI. Attention is invited to Prof. Yashpal Vs. State of Chhattisgarh
2005 (5) SCC 420 where the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002
enabling the University to have an off-campus center outside
the State was held to be beyond the legislative competence of
the Chhattisgarh legislature;
VII. Attention is invited to GVK Industries Ltd. Vs. Income Tax
Officer (2011) 4 SCC 36 in support of the proposition that only
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
Parliament and not the State legislatures, has the legislative
competence to enact laws with respect to matters that implicate
the use of State power to effectuate some impact or effect on
aspects or causes that occur, arise or exist or may be expected
to do so, outside the State territory;
VIII That Section 4 of the GGSIPU Act in so far as extends the
powers of the University outside Delhi is bad and can be
upheld only when read with Statute 24 requiring NOC of the
concerned State Government;
IX That the NCR Act does not empower GNCTD to legislate in
the field of education;
X AICTE is not concerned with affiliation;
XI That the AICTE Regulations apply to Central Government
Universities and not to State Universities;
XII That the State cannot object at the stage when the approval of
AICTE is sought;
XIII Attention is invited to Regulation 8 (11) of the AICTE (Norms
& Guidelines for Fees and Guidelines for Admissions in
Professional Colleges) Regulations, 1994 which provides for
admission to be made by a competent authority of the State and
not by the out of State affiliating body;
XIV On the plea of estopple, it is argued that the State has never
represented that it will give NOC for approval with GGSIPU;
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
XV That even otherwise, there can be no estopple against the
Statute;
XVI That merely because NOC has been given in the past is no
ground for directing issuance thereof;
XVII That the learned Single Judge, in the judgment impugned in the
appeal, has not decided the said issue;
XVIII That the judgment in Charanjiv Charitable Trust was not
concerned with the aspect of territorial operation of State laws;
XIX That the standards of the State Universities will improve only
upon good Colleges/Institutions affiliating - else will continue
to languish.
7. The State of Uttar Pradesh, which is respondent in W.P.(C) No.
1982/2012 has filed a counter affidavit through the Registrar of Mahamaya
Technical University, Gautam Budh Nagar, Uttar Pradesh pleading that as
per the Uttar Pradesh Technical University Act, 2000 the Uttar Pradesh
Technical University exercises jurisdiction over the whole of the State of
Uttar Pradesh and every college or institution other than existing colleges at
the commencement of the Act, imparting technical education in the State of
Uttar Pradesh, would be deemed to be affiliated to Uttar Pradesh Technical
University and would cease to be affiliated to or associated with the
Universities established under Uttar Pradesh State Universities Act, 1973;
that by the Amendment Act of the year 2010, separate Universities for
different areas of the State were created and now Mahamaya Technical
University exercises control over colleges and institutions imparting
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
technical education in Meerut, Sharanpur, Agra, Aligarh and Muradabad
Divisions. It is further pleaded that the College/Institution established at
Noida, to impart technical education is deemed to be affiliated to Mahamaya
Technical University and as such NOC for affiliation with GGSIPU was
refused since a technical college in Uttar Pradesh cannot be affiliated to any
other University.
8. The counsel for AICTE has invited attention to Jaya Gokul
Educational Trust (supra) laying down that AICTE is the sole body
authorized to grant approval and provisions of any enactment conferring
powers on State Government or University inconsistent with AICTE would
be void.
9. The counsel for the GGSIPU has contended:-
a). That though the petitions challenge the vires of Statute 24 of
GGSIPU but without specifying any ground therefor;
b). That to enable GGSIPU to regulate its affiliated college
situated in another State, it is necessary to have the NOC of the
concerned State Government;
c). That GGSIPU has not only been set up by the GNCTD but has
a very close association with GNCTD and is guided by
GNCTD but has no administrative linkages to the State
Governments of Haryana, Uttar Pradesh or Rajasthan and
unless affiliation is with the approval and consent of those State
Governments, GGSIPU would not be assured of their help and
cooperation;
d). That even independently of Clause 3(ii)(b) of Statute 24,
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
GGSIPU can always ask for such an NOC in as much as there
is no right in any of the Colleges/Institutions to seek affiliation;
e). Attention is also invited to the judgment dated 13th August,
2010 of one of us (R.S.Endlaw, J) in W.P.(C) No. 4771/2010
titled Gitarattan Institute of Advanced Studies & Training Vs.
Director Higher Education MANU/DE/2730/2010 where the
earlier judgment in Trinity Institute of Higher Education was
distinguished and it is informed that the Intra Court appeal
preferred thereagainst was withdrawn;
f). Attention is invited to Adarsh Shikha Mahavidyalaya Vs.
Subhash Rahyangdale (2012) 2 SCC 425 taking the same
view as Gitarattan Institute of Advanced Studies & Training;
g). Reference is made to the directive of the University Grants
Commission (UGC) advising Universities against granting
affiliation to any College/Institute situated outside the State and
it is informed that owing thereto the GGSIPU this year is not
affiliating any College/Institute outside Delhi. Letter dated 10th
May, 2012 of the GNCTD to GGSIPU in this regard was
handed over;
h). That Section 4 of the GGSIPU Act which enables GGSIPU to
exercise powers over the NCR is valid in view of the creation
of NCR - that in view of the NCR Act, the judgment in Prof.
Yashpal (supra) is not applicable;
i). That State of Haryana is estopped from challenging the
authority of GGSIPU to grant affiliation to
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
Colleges/Institutions within the NCR;
j). With respect to the argument of deemed NOC, it is stated that
each of the Institutions (except in LPA No.756/2011) in their
application to AICTE had proposed affiliation to the MD
University and not to GGSIPU and thus the question of deemed
NOC does not arise;
k). The judgment in Trinity Institute of Higher Education is also
argued to be per incuriam qua Statute 24 (supra). In any case it
is stated that Trinity Institute of Higher Education was
concerned with NOC from GNCTD and not from other States.
10. In the aforesaid state of affairs the question which arises for
consideration is whether GGSIPU established by GNCTD is entitled to
grant affiliation to Colleges/Institutions situated outside Delhi, though
within the NCR.
11. If the answer to the above is „yes‟, then whether the condition for
NOC of the State Government is bad.
12. However before adverting to determination of two issues aforesaid,
the judgments cited at the bar may first be noticed in as much as, if the said
issues are covered by the said judgments, especially of the Supreme Court,
the need for determination by this Court would not arise.
13. Though Jaya Gokul Educational Trust is cited to contend that the
requirement of such NOC of the State Government as a condition for
affiliation is bad but a perusal of the facts of that case as recorded in the
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
judgment shows that the College/Institution granted approval by the AICTE
in that case was within the State of Kerala and it was in this context that it
was held by the Apex Court that once AICTE had granted approval, the
NOC of the Government of the State in which the College/Institution is
situated was not necessary, also not for affiliation with the University of the
same State. The recent judgment cited of the Kerala High Court in St.
Joseph's Hospitals Trust was also a case of Colleges/Institutions with their
campuses within the State of Kerala being denied affiliation for the reason
of not entering into agreement with the State Government enabling the State
Government to make admission to 50% of the seats. It was in this context
that relying on Jaya Gokul Educational Trust it was held by the Division
Bench of Kerala High Court that NOC of the State Government for
affiliation was not necessary.
14. Similarly Mata Sudarshan Tilak Raj Dhawan Educational Trust,
Panchkula judgment of the Punjab and Haryana High Court also pertains to
refusal by the Government of the State of Haryana to issue NOCs (insisted
upon by the Universities of the State of Haryana as a condition for
affiliation) to Colleges/Institutions which had been granted approval by the
AICTE. It was in these facts that it was held that the University was not
entitled to insist on NOC as a condition for affiliation.
15. The judgments of this Court in Aditya College of Pharmacy &
Science and in Trinity Institute of Higher Education also were in the
context of the issuance of the NOC by the Governments of the State within
whose territory the Colleges/Institutions were situated and the University
concerned viz. GGSIPU was also of the same State.
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
16. However these are not the facts on which the objection of the State of
Haryana is predicated. The stark difference in the facts of the present case is
that the NOC being sought by GGSIPU as a condition for affiliation is not
of GNCTD (which has set up GGSIPU) but of the Governments of the
States where the College/Institution is situated. The NOC of the State
Government, provided for in Statute 24 of GGSIPU is stated to be, not of
the nature which was discussed in Jaya Gokul Educational Trust and other
judgments supra and which was held to be not necessary, but is stated to be
intended to enable GGSIPU set up by GNCTD to have extra territorial
operation in the portions of the States of Haryana, Rajasthan and Uttar
Pradesh falling in the NCR. The argument of the senior counsel for the State
of Haryana, invoking Article 245 of the Constitution of India, remained to
be met by the counsels for Colleges/Institutions. This singular factual
difference makes the judgment of the Apex Court in Jaya Gokul
Educational Trust inapplicable to the present cases. The Supreme Court in
Official Liquidator Vs. Dayanand (2008) 10 SCC 1 has held that even one
additional fact may make a lot of difference in the precedential value of a
decision and disposal of cases by blindly placing reliance on a decision is
not proper.
17. Though undoubtedly in Charanjiv Charitable Trust the
College/Institution was situated in the State of Haryana and was seeking
affiliation to GGSIPU and the Division Bench of this Court to which one of
us, (Acting Chief Justice) was a party, following Jaya Gokul Educational
Trust directed GGSIPU to make admissions to the College/Institution
notwithstanding refusal by the State of Haryana of the NOC but the plea of
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
Article 245 was neither raised nor discussed and the direction given was in
the face of the State of Haryana having issued the NOC for the previous
years. Since the important plea of Article 245 of the Constitution was not
noticed in the said judgment and the Colleges/Institutions in the present
cases are different, we do not feel the need to refer the matter to Larger
Bench, more so when the same may result in an academic year being lost.
None of the counsels also made any such request. Similarly, the question of
the power of the State University to grant affiliation to an out of State
College/Institution was not adverted to in V.S. B. Educational Trust.
18. Section 4 of the GGSIPU Act enacted by GNCTD empowering
GGSIPU established thereunder, to exercise power outside Delhi in the
NCR is undoubtedly contrary to the spirit of Article 245(1) of the
Constitution empowering the legislature of a State to make laws for the
whole or any part of the State only. Once the legislature of a State is
empowered to make laws having force only within the State and not outside
the State, it is axiomatic that such laws cannot create/establish bodies which
will exercise powers outside the State. A University established by the law
of one State cannot exercise powers outside the State. Grant of affiliation
by a University is not an empty exercise and is not such an action on the
part of the University which can be said to be confined to the State which
has established the University or which action would have no impact or
effect outside the State. The College/ Institution so affiliated to GGSIPU, is
required, under Statute 24, to adhere to the provision of the GGSIPU Act,
the Statues, ordinances, regulations and directions of GGSIPU including as
to appointment of teachers and their service conditions, admission of
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
students and the terms and conditions of such admission and to also submit
itself to inspections by GGSIPU. There thus has to be a strong nexus
between GGSIPU and its affiliate colleges and Institutions. Such affiliation
tantamounts to the Colleges / Institutions, though situated in the States of
Haryana or Uttar Pradesh being governed by the law enacted by GNCTD.
The close nexus required between the University and its affiliate is however
broken by the two being situated in territories of two different States. The
grant of affiliation by GGSIPU is also coupled with the right of withdrawal
of affiliation and it is the general principle that such withdrawal of
affiliation attributable to the erring College / Institution is not to be to the
prejudice of the students already admitted and such students have to be
accommodated in other Colleges / Institutions of the University or of its
other affiliates. However such transposition of students is also bound to
pose a problem where the affiliated College / Institution is situated in a
territory outside the State which has established the University. The
University is also required to hold examinations at the affiliated Colleges /
Institutions and which also requires enforcement of the conditions of such
examinations and requires the support of the government, as the University
has no machinery of its own to enforce orderly conduct of examinations.
Non cooperation of the State Government in all these respects would
virtually defeat enforcement of the conditions of affiliation. The role of the
University has been highlighted by one of us (R.S. Endlaw, J.) in Gitarattan
Institute of Advanced Studies & Training (supra). Even in para 20 of
Bharati Vidyapeeth [Deemed University] Vs. State of Maharashtra (2004)
11 SCC 755 it was observed that the State may to a certain extent control
the Colleges / Institutions affiliated to the University in regard to admission
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
or ownership of the Institutions. The same is also indicative of a
coordination being required between the University and the State and which
coordination cannot be expected when the two are in different States. To
keep alive the said nexus, the co-operation of the State in which the
College/Institution is situated is required and to elicit which, the NOC is
required.
19. Regulation 8(11) of the AICTE (Norms & Guidelines for Fees &
Guidelines for Admission in Professional Colleges) Regulations, 1994 also
provides that where the Institutions are affiliated to an out of State
affiliating body, the seats in such Institutions shall be included in the seats
available in the State in which the Institution is actually located and
admission shall be made by competent authorities in that State in
accordance with the procedure specified under the regulations. The same
also shows the need for a coordination between the affiliating University
and the State in which the affiliate College/Institution is situated and which
coordination can be secured only with the consent through the NOC.
Though the said regulation was cited by the counsels for the
Colleges/Institutions to demonstrate that AICTE itself has contemplated of
such a situation but we are of the view that the occasion for application
thereof will arise only when both consent to such a situation and the same
cannot be treated as enabling/empowering such affiliation.
20. We may at this stage also notice that though Jaya Gokul Educational
Trust had held the State Government to be having no role once AICTE had
granted approval but subsequently in Govt. of Andhra Pradesh Vs. J.B.
Educational Society (2005) 3 SCC 212 it was held that the provisions of the
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
AICTE Act, 1987 have to be harmonized with the State laws to secure a
coordinated action in the higher education and it is the State authorities
alone which can decide about the educational facilities and the needs of the
locality. Similarly in Chairman, Bhartia Education Society Vs. State of
Himachal Pradesh (2011) 4 SCC 527, it was observed that the University
as the examining body can impose its own requirement in regard to the
eligibility of the students for admission to a course in addition to those
prescribed by NCTE and "the State Government and the examining body
may also regulate the manner of admissions". It was further held that the
process of affiliation cannot be of an automatic rubber stamping once
approval by NCTE is given. Recently in Society for Unaided Private
Schools of Rajasthan Vs. Union of India (2012) 6 SCC 1 also it was
observed that though there may be a fundamental right to set up an
educational institutions but there is no such right to seek affiliation.
21. Our own research has led us to Ambaji Physiotherapy College
Managed by Ambaji Education Vs. State of Gujarat through Secretary
MANU/GJ/0914/2011where a Division Bench of the Gujarat High Court
was faced with a near identical question; the Colleges / Institutions situated
in the State of Gujarat were demanding NOC from the Government of State
of Gujarat for affiliation with a University situated outside the State of
Gujarat, in the State of Maharashtra; the Maharashtra Universities Act,
1994 permitted such affiliation. It was held that no object was sought to be
achieved by the Maharashtra Act enabling a University of the State of
Maharashtra to grant affiliation to Colleges situated outside the State of
Maharashtra and that the Maharashtra University would not be able to
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
exercise any control over Colleges in the State of Gujarat. It was
accordingly held that the State of Gujarat had no legal duty to issue such
NOC and the Colleges / Institutions had no legal right to seek the same. We
are in respectful agreement with the view so taken.
22. However that is not the end of the road. The Parliament in its
wisdom has enacted the NCR Act creating the NCR. The preamble thereto
shows the same to be in pursuance to Article 252 (1) of the Constitution and
Resolutions passed by the Houses of the legislatures of the States of
Haryana, Rajasthan & Uttar Pradesh to the effect that a Planning Board for
the preparation of a plan for the development of NCR and for coordinating
and implementation of such plan and for evolving harmonized policies for
the control of land uses and development of infrastructure in the NCR so as
to avoid any haphazard development. Section 3 of the said Act provides for
constitution of a Board called NCR Planning Board by the Central
Government. Section 7 of the said Act prescribes the functions of the NCR
Planning Board as preparation of regional and functional plans and to
coordinate enforcement and implementation thereof to ensure proper and
systematic programming by the participating States and the Union Territory
in regard to determination of priorities in the NCR. However Sections 10 &
11 thereof, while providing for the contents of the regional and sub-regional
plans provide for the manner in which the land in the NCR shall be used
including reservation for areas for specific land use, road network,
coordination of traffic and transportation, proposals for supply of drinking
water and drainage and any other matter which is necessary for proper
development. It may be highlighted that education is not mentioned as the
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
subject matter of such plans, unless the same is deemed to be included in the
residuary clause of „any other matter for proper development‟, as education
can certainly be said to be. However neither of the counsels for the
Colleges/Institutions have argued so and we have our reservations on
holding the NCR Planning Board to be empowered to plan for coordinated
education in the NCR when the contents of the plan are limited to land use.
Be that as it may, it is not the case of the Colleges/Institutions also that as
per the plan drawn up by the NCR Planning Board, Universities of one State
are empowered to affiliate Colleges/Institutions situated in another State.
Need is thus not felt to render any final view on the said subject though we
are of the opinion that the same is in the interest of and necessary to give
meaning to the creation of NCR. Cases are not unknown where students of
an educational institution in one State of the NCR are residents of another
State in the NCR and which is creating problems qua the rules of admission
pertaining to domicile, institutional preference etc. We thus strongly
recommend to all Governmental/agencies concerned to bestow their
attention on the said aspect and find a solution beneficial to the public at
large. While the want of the State of Haryana to have unaided
Colleges/Institutions with good infrastructure though in the NCR but in the
State of Haryana affiliated to the University of the State of Haryana is
understandable but the same is pitted against the facts highlighted by the
Colleges/Institutions that the students seeking admissions give priority to
Colleges/Institutions affiliated to Universities of Delhi and not to the State
Universities. The same is evident of the standards enforced by the
Universities of Delhi being better than the State Universities and the
employers in the matter of giving employment giving preference to
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
degrees/qualifications of Universities of Delhi. We are of the opinion that a
solution by the NCR Planning Board, permitting Colleges/Institutions in the
NCR a choice of affiliation to the Universities of any of the States of NCR
will not only be for the benefit of the students of NCR but will also bring
about a healthy competition enabling all such Universities to grow and
improve. In this regard, it may be seen that by virtue of Section 27 thereof,
the NCR Act overrides anything inconsistent contained in any other law.
We may also notice that at least a Single Judge of the Allahabad High Court
in Shresth Shiksha Sanstha Vs. State of Uttar Pradesh through Secretary
Department of Higher Education and Guru Gobind Singh Indraprastha
University MANU/UP/1579/2006 quashed the refusal by the State of Uttar
Pradesh of NOC for affiliation with GGSIPU and directed the State
Government to reconsider the matter in the light of the NCR Act.
23. However as the position stands today, we are unable to hold that the
requirement by GGSIPU of such NOC is bad or to command the States of
Haryana or Uttar Pradesh to issue such NOCs.
24. Though the counsels for the Colleges/Institutions had also referred to
Guru Jambheshwar University, Hisar (Amendment Act, 1996) (Haryana
Act 11 of 1996) to contend that the same itself negates the MD University
Act but both Universities and laws being of the State of Haryana, we do not
find the same to be of any impact on the matter in controversy.
25. The College/Institution in W.P.(C) No.1566/2012 was granted
affiliation by GGSIPU when it was located in rented premises in Delhi but
has now set up campus at Murthal, District Sonepat, Haryana and is seeking
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
permission of GGSIPU to shift. Though the counsels have contended that
the case is therefore different, but not in our view.
26. Similarly, on behalf of College/Institution in LPA No.756/2011,
reference is made to earlier orders, at the stage of grant of interim relief, to
contend that the matter stands concluded. However, neither can any
exception be made in favour of one College/Institution, nor do we find the
affiliation to be workable in the face of opposition by State of Haryana.
27. We are also of the view that the refusal of the Governments of the
States of Haryana and Uttar Pradesh to issue NOC cannot be said to be
arbitrary. The local laws of the respective States do not permit
Colleges/Institutions located therein to be affiliated to any University other
than the respective State Universities. The refusal is thus in consonance with
local laws to which there is no challenge.
28. We are thus unable to concur with the judgment of the learned Single
Judge under challenge in LPA No.756/2011 and set aside the same. We also
do not find any merit in the writ petitions.
29. Of all the Colleges/Institutions parties to these proceedings, only the
College/Institution in LPA No.756/2011, under interim arrangement was
granted provisional affiliation to GGSIPU and permitted to admit students.
Further application of the said College/Institution to make admissions in the
current academic year is also pending. Though we have allowed the appeal
but we direct the State of Haryana to take all steps, subject to compliance by
the said College/Institute of the requisite norms, for ensuring takeover
of the students already so admitted, by the MD University. We
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
otherwise also direct the States of Haryana and Uttar Pradesh to,
notwithstanding the last dates if any fixed in this regard having lapsed,
allow consideration of applications of all Colleges/Institutions parties to
these proceedings for affiliation to the concerned Universities for the current
academic year, to enable admission of students.
30. The appeal is thus allowed and the writ petitions are dismissed.
Axiomatically, the applications for interim relief qua the current academic
year are also dismissed.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
AUGUST 27, 2012
pp..
LPA 756/2011, W.P.(C) 8394/2011, 1566/2012, 1982/2012, 2090/2012 & 2416/2012
