Martin Luther Christian University Vs Union of India and Others

AI Structured Summary

Not yet generated for this judgment

Judgment

148 paragraphs · 7,596 words

T. Nandakumar Singh, J.—Heard Mr. HS Thangkhiew, learned senior counsel assisted by Mr. N Mozika, learned counsel for the petitioner-university, Mr. R Deb Nath, learned CGC appearing for the respondent No. 1, Mr. B Deb, learned counsel assistant to (Late) Mr. SC Shyam, learned senior counsel appearing for the respondents No. 2 & 3 and Mr. ND Chullai, learned Sr.GA assisted by Mr. B Khyriem, learned GA appearing for the respondent No. 4.

The prayers in the writ petition are:--

"(i) set aside and quash the UGC (Establishment and Maintenance of Standards in Private Universities) Regulation, 2003 and

(ii) set aside and quash the Notification dated 07.06.2012

And/or pass such further order or orders as your Lordships may deem fit and proper."

Consequent to the enactment of "Martin Luther Christian University Act, 2005 (Meghalaya Act No. 11 of 2005) by the Legislature of the State of Meghalaya and followed by receipt of assent of the Governor of Meghalaya on 06.07.2005, and consequent Gazette Notification in the Gazette of Meghalaya dated 13.07.2005, the petitioner-university was established under Section 3 of the Martin Luther Christian University Act, 2005 (for short ''the said Act of 2005''). The petitioner-university is a self financing organization in terms of the provisions of Section 5 of the said Act of 2005 and had not prayed for any grant-in-aid or any other financial assistance from the respondents including the respondent No. 2 i.e. University Grants Commission. Section 6 of the said Act of 2005 confers the right of the university to have constituent colleges, regional centres and study centres and also to affiliate any college or other institution. Section 8 of the said Act of 2005 inter-alia confers power on the petitioner-university to establish institution and confer degrees, titles, diplomas, certificates and other academic distinctions as well as to approve and designate colleges and establish special centres and units, classrooms, study halls etc. within the premises of the university or elsewhere. Further Section 51 of the said Act of 2005 provides that the establishment, maintenance of standard and any other matter concerning the university including affiliation of colleges, constituent colleges, study centres and regional centres would be subject to the University Grants Commission (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003, as amended from time to time and any other regulation or direction that may be issued by the UGC from time to time. For easy reference Sections 2(1) & 2(1)(xxvii) , 3 , 4(1) & 4(3) , 5 and 51 are quoted hereunder:--

"Definitions: 2(1) In this Act unless the context otherwise indicates:

***** ***** *****

(xxvii) "Sponsor" means the Khasi Jaintia Presbyterian Assembly and the National Lutheran Health and Medical Board of the Union Evangelical Lutheran Church in India.

Proposal for the establishment of the university: 3 (1) The Sponsor shall have the right to establish the University in accordance with the provisions of this Act.

(2) An application containing the proposal to establish a University shall be made to the State Government by the Sponsor.

The proposal may contain the following particulars, namely:

(a) The objects of the University along with the details of the Sponsor;

(b) The extent and status of the University and the availability of land;

(c) The nature and type of programs of study and research to be undertaken in the University during a period of the next five years;

(d) The nature of faculties, courses of study and research proposed to be started;

(e) The campus development such as buildings, equipment and structural amenities;

(f) The phased outlays of capital expenditure for a period of the next five years;

(g) The item-wise recurring expenditure, sources of finance and estimated expenditure for each student;

(h) The scheme for mobilizing resources and the cost of capital thereto and the manner of repayments to each source;

(i) The scheme of generation of funds internally through the recovery of fee from students, revenues anticipated from consultancy and other activities relating to the objects of the University and other anticipated incomes;

(j) The details of expenditure on unit cost, the extent of concessions or rebates in fee, freeship and scholarship for students belonging to economically weaker sections and the fee structure indicating varying rate of fee, if any, that would be levied on non-resident Indians and students of other nationalities;

(k) The history and credentials of the sponsor including years of experience and expertise in the concerned discipline at the command of the Sponsor as well as the financial resources;

(l) The system for selection of students to the courses of study at the University; and

(m) Nature and types of its partnership and affiliations.

(n) Status of fulfillment of such other conditions as may be required by the State Government to be fulfilled before the establishment of the University.

Establishment of university: 4(1) Where the State Government, after such inquiry as it may deem necessary, is satisfied that the Sponsor has fulfilled the conditions specified in. sub-section (2), of Section 3 , it may direct the Sponsor, to establish an Endowment Fund.

***** ***** *****

4(3) The campuses of the University shall be at any place within the state of Meghalaya with its headquarters at Mawphlang, East Khasi Hills, Meghalaya and it may have campuses or Regional Centres, Study Centres any where in India or abroad with approval of the Government of Meghalaya.

University not to be entitled to financial assistance: 5. The University shall be self-financing and shall neither make a demand nor shall be entitled to any grant in-aid or any other financial assistance from the State Government or any other body or corporation owned or controlled by the State Government.

51.

Not withstanding anything contained in this Act, the establishment, maintenance of standards and any other matter concerning this University including affiliation of Colleges, constituent Colleges, Study Centres and Regional Centres shall be subject to the UGC (Establishment and Maintenance of Standards in Private Universities) Regulation 2003 as amended from time to time and any other Regulation or direction as may be issued by the UGC from time to time."

Article 246 of the Constitution of India clearly provides the subject matter for which the laws are to be made by the Parliament and by the Legislature of States and also the subject matter for which the laws could be made by both the Parliament and Legislature of States. For easy reference Article 246 of the Constitution of India is reproduced hereunder:--

"246. Subject-matter of laws made by Parliament and by the Legislature of States.--(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State [***] also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

(3) Subject to clauses (1) and (2), the Legislature of any State [***] has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ''State List'').

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List."

The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule and subject to clauses (1) and (2) of Article 246 of the Constitution of India, the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule. The Parliament and the Legislature of any State have the power to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule (Concurrent List). Article 246 clause (2) of the Constitution of India clearly provides that any law made by the Legislature of the State with respect to any of the matters enumerated in List III of the Seventh Schedule, shall subject to the laws made by the Parliament in respect of any of the matters enumerated in List III. Entry 66 of List 1 of the Seventh Schedule reads as "co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Entry 32 of List II of the Seventh Schedule reads as "incorporation, regulation and winding up of corporation, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies."

For the subject matter in Entry 66 of List I of the Seventh Schedule, the Parliament had enacted an Act called "the University Grants Commission Act, 1956" to make provision for the co-ordination and determination of standards in universities and for that purpose, to establish a University Grants Commission. Under Section 4 of the University Grants Commission Act, 1956 (for short the said Act of 1956), established a Commission called University Grants Commission. The powers and functions of the Commission are provided under Section 12 of the said Act of 1956. Under Section 22 of the said Act of 1956, right to confer degrees shall be exercised only by a university established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a university under Section 3 or an institution specially empowered by an Act or Parliament to confer or grant degrees. Section 3 of the said Act of 1956 provides the application of Act to institutions for higher studies other than universities.

Section 23 of the said Act of 1956 prohibited the use of the word "university" in certain cases. Section 26 of the said Act of 1956 clearly provides the regulations making power of the University Grant Commission (for short ''UGC'') for the subject matter mentioned therein. For easy reference, Sections 22 , 23 and 26 of the said Act of 1956 are quoted hereunder:--

"22. Right to confer degrees.--(1) The right of conferring or granting degrees shall be exercised only by a university established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a university under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees.

(2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree.

(3) For the purposes of this section, "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette.

23.

Prohibition of the use of the word "University" in certain cases.--No institution, whether a corporate body or not, other than a university established or incorporated by or under a Central Act, a Provincial Act or a State Act shall be entitled to have the word "University" associated with its name in any manner whatsoever.

Provided that nothing in this section shall, for a period of two years from the commencement of this Act, apply to an institution which, immediately before such commencement, had the word "University" associated with its name.

26.

Power to make regulations.--(1) The Commission [may, by notification in the Official Gazette, make regulations] consistent with this Act and the rules made thereunder,-

(a) regulating the meetings of the Commission and the procedure for conducting business thereat;

(b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9 ;

(d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of section 2 ;

(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions;

(f) defining the minimum standards of instruction for the grant of any degree by any University;

(g) regulating the maintenance of standards and the coordination of work or facilities in Universities.

[(h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;]

[(i) specifying the matters in respect of which fees may be charged and scales of fees in accordance with which fees may be charged by a college under sub-section (2) of section 12A ;]

[(j) specifying the manner in which an inquiry may be conducted under sub-section (4) of section 12A .]

(2) No regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) [(or clause (h) or clause (i) or clause (j)] of sub-section (1) except with the previous approval of the Central Government.

[(3) The power to make regulations conferred by this section [except clause (i) and clause (j) of sub-section (1)] shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.] "

The UGC in exercise of the powers conferred by clauses (f) and (g) of sub-section (1) of Section 26 of the said Act of 1956, made the Regulations called "University Grants Commission (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003". For easy reference, Regulations 2, 3 and 5 of the University Grants Commission (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003 (for short ''UGC Regulations, 2003'') are quoted hereunder:--

"2. Definitions

2.1. "private university" means a university duly established through a State/Central Act by a sponsoring body viz. a Society registered under the Societies Registration Act 1860, or any other corresponding law for the time being in force in a State or a Public Trust or a Company registered under Section 25 of the Companies Act, 1956.

2.2. "off-campus centre"* means a centre of the private university established by it outside the main campus (within or outside the State) operated and maintained as its constituent unit, having the university''s compliment of facilities, faculty and staff.

2.3. "off-shore campus"* means a campus of the private university established by it outside the country, operated and maintained as its constituent unit, having the university''s compliment of facilities, faculty and staff.

2.4. "study centre"* means a centre established and maintained or recognized by the university for the purpose of advising, counseling or for rendering any other assistance required by the students used in the context of distance education.

2.5. "students" means a person duly admitted and pursuing a programme of study.

*_" " off-campus centre" " off-shore campus" and "study centre" as defined under these Regulations shall be applicable to the universities as defined under 2(f) of the UGC Act, 1956.

Establishment and recognition of Private Universities

3.1. Each private university shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956, as amended from time to time.

3.2. A private university shall be a unitary university having adequate facilities for teaching, research, examination and extension services.

3.3. A private university established under a State Act shall operate ordinarily within the boundary of the State concerned. However, after the development of main campus, in exceptional circumstances, the university may be permitted to open off-campus centres, off-shore campuses and study centres after five years of its coming into existence, subject to the following conditions.

3.3.1. The off-campus centre(s) and/or the study centre(s) shall be set up with the prior approval of the UGC and that of the State Government(s) where the centre(s) is/are proposed to be opened.

3.3.2. The over-all performance of the off-campus centre(s) and/or study centre(s) shall be monitored annually by the UGC or its designated agency. The directions of the UGC for management, academic development and improvement shall be binding.

3.3.3. If the functioning of the said centre(s) remains unsatisfactory, the private university shall be instructed by the UGC to close down the said centre(s), which shall be binding on the university. In such a situation, the interests of the students already enrolled therein shall be protected.

3.3.4. Any off-shore campus(es) in foreign countries shall be opened only after obtaining due permission from the Government of India and also that of the Government of the host country.

3.3.5. In case of off-shore campus(es), the remittance of funds shall be governed by the rules and regulations of the Reserve Bank of India.

3.4. A Private university shall fulfill the minimum criteria in terms of programmes, faculty, infrastructural facilities, financial viability etc. as laid down from time to time by the UGC and other concerned statutory bodies such as the All India Council for Technical Education (AICTE), the Bar Council of India (BCI), the Distance Education Council (DEC), the Dental Council of India (DCI), the Indian Nursing Council (INC), the Medical Council of India (MCI), the National Council for Teacher Education (NCTE), the Pharmacy Council of India (PCI) etc.

3.5. The courses of studies prescribed for a first degree and/or the post-graduate degree/diploma programmes should have been formally approved by the respective academic bodies of the private university, such as _ Board of Studies, Academic Council and Governing/Executive Council.

3.6. The programmes of study leading to a degree and/or a post-graduate degree/diploma offered by a private university shall conform to the relevant regulations/norms of the UGC or the concerned statutory body as amended from time to time.

3.7. A private university shall provide all the relevant information relating to the first degree and post-graduate degree/diploma programme(s) including the curriculum structure, contents, teaching and learning process, examination and evaluation system and the eligibility criteria for admission of students, to the UGC on a proforma prescribed by the UGC prior to starting of these programmes.

3.8. The UGC on detailed examination of the information made available as well as the representations and grievances received by it from the students as well as concerned public relating to the deficiencies of the proposed programme(s) not conforming to various UGC Regulations, shall inform the concerned university about any shortcomings in respect of conformity to relevant regulations, for rectification. The university shall offer the programme(s) only after necessary rectification.

3.9. The admission procedure and fixation of fees shall be in accordance with the norms/guidelines prescribed by the UGC and other concerned statutory bodies.

Consequences of violations

5.1. After inspection and assessment of a private university providing first degree and/or post graduate degree/diploma courses, the UGC may indicate to the university any deficiency and non-conformity with the relevant UGC Regulations and give it reasonable opportunity to rectify the same. If the Commission is satisfied that the private university has, even after getting an opportunity to do so, failed to comply with the provisions of any of the Regulations, the Commission may pass an order prohibiting the private university from offering any course for the award of the first degree and/or the postgraduate degree/diploma, as the case may be, till the deficiency is rectified.

5.2. The UGC may take necessary action against a private university awarding a first degree and/or a post-graduate degree/diploma, which are not specified by the UGC, and inform the public in general through a public notification. A private university continuing such programme(s) and awarding unspecified degree(s) shall be liable for penalty under Section 24 of the UGC Act."

The UGC had issued a public notice on private universities dated 07.06.2012 including the petitioner-university, relevant portions of which read as follows:--

"***** ***** *****

***** ***** *****

It is also informed that private universities cannot affiliate an institution/college. They cannot establish off campus centre(s) beyond the territorial jurisdiction of the concerned State. However, they can establish off-campus centre(s) within the concerned State after their existence of five years and with the prior approval of the University Grants Commission. So far, UGC has not approved any off-campus centre(s) of any Private University.

Course(s) under distance mode can be started by the private university only after the prior approval of the UGC-AICTE and DEC joint Committee for which Director, Distance Education Council, IGNOU, Maidan Garhi, New Delhi-110068 is the coordinator.

Students/Public at large are advised to go through this website carefully at the time of taking admission and should clarify the status of the University from UGC before taking admission in any Private University other than those listed above.

Further, para 3.7 & 3.8 of the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003 are reproduced below for information of all the Private Universities:--

A copy of the UGC (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003 alongwith the proforma for submission of information by the Private University are annexed with the notice.

Secretary"

10.

Regulation 3.1 of the said UGC Regulations, 2003 provides that private university shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956 amended from time to time. Regulation 3.2 of the said UGC Regulations, 2003 provides that a private university shall be a unitary university having adequate facilities for teaching, research, examination and extension services. Regulation 3.3 of the said UGC Regulations, 2003 further provides that a private university established under a State Act operate ordinarily within the boundary of the State concerned. However, after the development of the main campus, in exceptional circumstances, the university may be permitted to open off-campus centres, off-shore campuses and study centres after five years of its coming into existence, subject to the conditions mentioned in Regulations 3.3.1, 3.3.2, 3.3.3, 3.3.4 and 3.3.5. Regulation 3.4 of the said UGC Regulations, 2003 further provides that a private university shall fulfill the minimum criteria in terms of programmes, faculty, infrastructural facilities, financial viability etc. as laid down from time to time by the UGC and other concerned statutory bodies such as All India Council for Technical Education (AICTE), the Bar Council of India (BCI), the Distance Education Council (DEC), the Dental Council of India (DCI), the Indian Nursing Council (INC), the Medical Council of India (MCI), the National Council for Teacher Education (NCTE), the Pharmacy Council of India (PCI) etc.

11.

The Legislature of the State of Meghalaya enacted an Act called "the Meghalaya Private Universities (Regulation of Establishment and Maintenance of Standards) Act, 2012". Section 3(5) of the Meghalaya Private Universities (Regulation of Establishment and Maintenance of Standards) Act, 2012 reads as:--

"3. Establishment and recognition of Private Universities:

***** ***** *****

(5) A Private university established under a State Act shall operate ordinarily within the boundary of the State concerned, subject to the following conditions, namely,

(a) a private university shall fulfill the minimum criteria in terms of programmes, faculty infrastructural facilities, financial viability as laid down from time to time by the UGC and other concerned statutory bodies to which it applies such as the All India Council for Technical Education (AICTE), the Bar Council of India (BCI), the Distance Education Council (DEC), the Dental Council of India (DCI), the Indian Nursing Council (INC), the Medical Council of India (MCI), the National Council for Teacher Education (NCTE), the Pharmacy Council of India (PCI) etc;

(b) The courses of studies prescribed for a first degree and/or the post-graduate degree/diploma programmes should have been formally approved by the respective academic bodies of the private university, such as Board of Studies, Academic Council or Governing or Executive Council;

(c) The programmes of study leading to a degree and/or a post-graduate degree or diploma offered by a private university shall conform to the relevant regulations or norms of the Education Department, Government of Meghalaya or the concerned statutory body as amended from time to time;

(d) A private university shall provide all the relevant information relating to the first degree or diploma programme(s) including the curriculum structure, contents, teaching and learning process, examination and evaluation system and the eligibility criteria for admission of students, to the Education Department, Government of Meghalaya on a proforma prescribed by the UGC or Department prior to starting of these programmes;

(e) Education Department, Government of Meghalaya on detailed examination of the information made available as well as the representations and grievances received by it from the students as well as concerned public relating to the deficiencies of the proposed programme(s) not conforming to various Government Regulations, shall inform the concerned university about any shortcomings in respect of conformity to relevant regulations, for rectification. The university shall offer the programme(s) only after necessary rectification;

(f) the admission procedure and fixation of fees shall be in accordance with the norms or guidelines prescribed by the UGC and other concerned statutory bodies;

(g) relaxation of fees for poor SC/ST and meritorious students of the State is to be formulated by a separate policy of the private university in consultation with the Government of Meghalaya."

12.

The petitioner-university challenged the said public notice dated 07.06.2012 on inter-alia reasons that:--

"(A) That there is nothing in the Act of 2005 prohibiting or debarring the petitioner-university from granting affiliation to any institution which may seek its affiliation in terms of the mandate of aforesaid Central Act. In fact, the aforesaid Central Act grants intra parte right to institutions to get affiliation of the petitioner-university and the petitioner-university to grant affiliation to such intending institutions. The mandate of the said Central Act cannot be curtailed by the impugned UGC Regulation of 2003 and/or the impugned Notification dated 07.06.2012. For all intent and purposes, the Central Act No. 2 of 2005 shall prevail over the impugned Regulation and the Notification and the impugned Regulation and Notification being violative of the mandates of Central Act No. 2 of 2005 is liable to be declared inoperative and redundant.

(B) That the impugned Regulation of 2003, especially its penal provisions contained under Clause 5 thereof, being absolutely impermissible under law, beyond the regulatory power conferred under the UGC Act is thus illegal, violative of its parent Act and hence liable to be set aside and quashed.

(C) That the impugned Notification dated 07.06.2012 being absolutely beyond the powers of its issuing authority, vitiated by malice and having been issued with colourable exercise of power is illegal, arbitrary and also violative of the mandates of Articles 14 , 19(1)(d) & (e) read with the provisions of Article Part-XII of the Constitution of India and consequently liable to be set aside and quashed.

(D) That the impugned Notification being violative of the mandates of Central Act 2 of 2005, especially the provisions of Section 10A thereof, the said Notification is liable to be set aside and quashed.

(E) That the prohibition as well as the contents of the impugned public Notification being absolutely violative of the principles of natural justice, equity and administrative fair play and the same having imposed unreasonable restrictions as well as penalty to the extent of virtually blacklisting the petitioner-university in the eyes of public is unsustainable in law and accordingly liable to be set aside and quashed.

(F) That the impugned actions of the respondents having given rise to violation of the Constitutional mandates of Articles 14 , 19 , 246 and 301 of the Constitution of India are liable to be set aside and quashed.

(G) That the impugned Notification dated 07.06.2012 being absolutely unauthorized, unknown to law and alien to the powers granted to the authority issuing the same is liable to be set aside and quashed.

(H) That the petitioner-university states that the impugned Notification posted in public domain is infringing the rights and status of the petitioner-university every moment and the prima facie illegality of the impugned Notification dated 07.06.2012 warrants and justifies an interim direction directing the respondents No. 2 & 3 to delete the name of the petitioner-university from the purview of the Notification dated 07.06.2012 pending final adjudication regarding the very maintainability and legal status of such Notification dated 07.06.2012 which is under challenge in this petition."

13.

The respondents No. 5-8 in their joint affidavit-in-opposition dated 31.10.2013 stated that as per the mandate of Section 3 of the Act of 2005, the petitioner-university was established by the sponsor and as per Section 2(xxvii) "sponsor" means the Khasi Jaintia Presbyterian Assembly and the National Lutheran Health and Medical Board of the Union Evangelical Lutheran Church in India. The respondents No. 5, 6, 7 & 8 being Church Ministers of the Khasi Jaintia Presbyterian Assembly are very much concerned about the good name and activities of their church, whereupon, the respondents have taken a keen interest in the matters of the petitioner-university. It has come to the notice of the respondents that there is a Memorandum of Understanding between the two sponsors of the petitioner-university which was signed on 09.04.2005 at Shangpung, Jaintia Hills District, Meghalaya for establishing the petitioner-university. In the Memorandum of Understanding, it is stated that the National Lutheran Health and Medical Board is a unit of the United Evangelical Lutheran Church in India, and as such, in the definition of sponsor aforesaid in the Act of 2005, the mention of United Evangelical Lutheran Church in India seems to be a misnomer. For seeking a clarification on this and other connected matters concerning the petitioner-university, the respondents along with the others had written a letter dated 28.03.2011 to Rev. Dr. A.G. Augustine Jeya Kumar, Executive Secretary, United Evangelical Lutheran Church in India, Chennai, and received the reply dated 29.03.2011. In that reply, it had been clarified that the United Evangelical Lutheran Church in India had no knowledge of the aforesaid Memorandum of Understanding dated 09.04.2005 for establishing the petitioner-university and that from 2009 onwards National Lutheran Health and Medical Board is no longer a unit of the United Evangelical Lutheran Church in India. It is pertinent to mention here that the Executive Director of the National Lutheran Health and Medical Board is Dr. K.M. Shyamprasad and he himself is the Chancellor of the petitioner-university. Moreover, the Endowment fund of the petitioner-university, as described in Section 40 of the Act of 2005, was a prerequisite for the establishment of the university and it is very uncertain as yet whether the same has been properly created or not.

14.

The questions called for decision in the present writ petition had already been decided by the Apex Court in Prof. Yashpal and Another Vs. State of Chhattisgarh and Others, and held that the State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also enactments generally for universities under Entry 25 of List III. However, the UGC Act has been made with reference to List I Entry 66. Entry 66 of List I deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. There can thus be a clash between the powers of the State and that of the Union. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in Parliament. The use of the expression "subject to" in List III Entry 25 of the Seventh Schedule clearly indicates that the legislation in respect of excluded matters cannot be undertaken by the State Legislature. It is the exclusive responsibility of the Central Government to determine the standards for higher education and the same should not be lowered at the hands of any particular State as it is of great importance to national progress. The Apex Court in Prof. Yashpal''s case (Supra) further held that it is the duty and responsibility of the UGC to make Regulations for maintenance of higher standards and achievement of uniformity in higher education and research and the private universities and institutions required to meet the requirements for maintenance of higher standards in higher education and research prescribed by the UGC. Paras 28, 45 and 46 of the SCC in Prof. Yashpal''s case (Supra) read as follows:--

"28. Though incorporation of a university as a legislative head is a State subject (Entry 32 List II) but basically a university is an institution for higher education and research. Entry 66 of List I is coordination and determination of standards in institution for higher education or research and scientific and technical institutions. There can thus be a clash between the powers of the State and that of the Union. The interplay of various entries in this regard in the three lists of the Seventh Schedule and the real import of Entry 66 of List I have been examined in several decisions of this Court. In The Gujarat University, Ahmedabad Vs. Krishna Ranganath Mudholkar and Others, a decision by a Constitution Bench rendered prior to the Forty-second Amendment when Entry 11 of List II was in existence, it was held that Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in Parliament. The use of the expression "subject to" in Item 11 of List II of the Seventh Schedule clearly indicates that the legislation in respect of excluded matters cannot be undertaken by the State Legislatures. In AIR para 23, the Court held as under: (SCR pp.137-38)

"Power of the State to legislate in respect of education including universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by Items 63 to 66 even if it otherwise falls within the larger field of ''education including universities'' power to legislate on that subject must lie with Parliament. ..... Item 11 of List II and Item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by Item 66 List I must prevail over the power of the State under Item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour."

45.

The State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also generally for universities under Entry 25 of List III. The subject "university" as a legislative head must be interpreted in the same manner as it is generally or commonly understood, namely, with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra vires, being a fraud on the Constitution.

46.

Entry 66 which deals with coordination and determination of standard in institutions for higher education or research and scientific and technical institutions is in the Union List and Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (see Prem Chand Jain and Another Vs. R.K. Chhabra, and Osmania University Teachers'' Association Vs. State of Andhra Pradesh and Another, ). The Act has been enacted to ensure that there is coordination and determination of standards in universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various universities in the country. In order to achieve the aforesaid objectives, the role of UGC comes at the threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like classrooms, libraries, laboratories, well-equipped teaching staff of requisite calibre and a proper student-teacher ratio. For this purpose, the Central Government has made a number of rules in exercise of powers conferred by Section 25 of the UGC Act and the Commission has also made regulations in exercise of power conferred by Section 26 of the UGC Act and to mention a few, the UGC Inspection of Universities Rules, 1960, the UGC Regulations, 1985 Regarding the Minimum Standards of Instructions for the Grant of the First Degree, UGC Regulations, 1991 Regarding Minimum Qualifications for Appointment of Teachers in Universities and Colleges, etc. UGC with the approval of the Central Government and exercising power under Section 22(3) of the UGC Act has issued a schedule of degrees which may be awarded by the universities. The impugned Act which enables a proposal on paper only to be notified as a university and thereby conferring the power upon such university under Section 22 of the UGC Act to confer degrees has the effect of completely stultifying the functioning of the University Grants Commission insofar as these universities are concerned. Such incorporation of a university makes it impossible for UGC to perform its duties and responsibilities of ensuring coordination and determination of standards. In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them."

15.

The Apex Court in Annamalai University rep. by Registrar Vs. Secy. to Govt. Infn. and Toursm Dept. and Others, held that:

"40. The UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalize educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.

41.

Was the alternative system envisaged under the Open University Act in substitution of the formal system, is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and an informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating coordination and determination of standards in universities. The purport and object for which it was enacted must be given full effect."

16.

The Apex Court in Parshavanath Charitable Trust and Others Vs. All India Council for Tech. Edu and Others, held that:

"25. It is also a settled principle that the regulations framed by the Central authorities such as AICTE (All India Council for Technical Education) have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the AICTE (All India Council for Technical Education) Act. In All India Council for Technical Education Vs. Surinder Kumar Dhawan and Others, , this Court, while stating the principles that the courts may not substitute their opinion in place of the opinion of the Council, held as under: (SCC pp.732-33 & 736, paras 17-18 & 32)

"17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In Dr. J.P. Kulshreshtha and Others Vs. Chancellor, Allahabad University and Others, this Court observed: (SCC pp. 424-26, paras 11-17)

''11. ..... Judges must not rush in where even educationists fear to tread. .....

***** ***** *****

17.

..... While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.''

(emphasis supplied)

18.

In Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, this Court reiterated: (SCC pp.56-57, para 29)

''29. ..... the court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.''

***** ***** *****

32.

This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/technical facets which can only be done by an expert body like AICTE (All India Council for Technical Education). This function cannot obviously be taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four-year advance diploma-holders who had passed the entry-level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one-time measure was extended for several years and was also extended to post diploma-holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination instead of the required minimum of 10+2 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards and quality of engineering degree courses. Court should guard against such forays in the field of education."

(emphasis in original)"

17.

The ratio decidendi of Parshvanath Charitable Trust case (Supra) was also followed by the Apex Court in Association of Management of Private Colleges Vs. All India Council for Technical Education and Others, .

18.

For the foregoing discussions, we are of the firmed view that the petitioner-university had misunderstood the power of the Parliament to make the University Grants Commission Act, 1956 as well as the power of the UGC to make the Regulations called the University Grants Commission (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003 and also that the Act called "the Martin Luther Christian University Act, 2005" and "the Meghalaya Private Universities (Regulation of Establishment and Maintenance of Standards) Act, 2012", made by the Legislature of the State of Meghalaya cannot override the University Grants Commission Act, 1956 and the University Grants Commission (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003. The purport and object for which the University Grants Commission (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003 was enacted must be given full effect. Accordingly, this writ petition is devoid of merit. Thus, the prayers sought for in the present writ petition cannot be granted.

19.

The writ petition is dismissed.

Martin Luther Christian University vs Union of India and Others

Judgment