2005 Supreme(SC) 242

2005(2) Supreme 322
Supreme Court of India
(Under Art. 32 of the Constitution of India)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Prof. Yashpal and Anr. —Petitioners
versus
State of Chhattisgarh and Ors. —Respondents
Writ Petition (C) No. 19 of 2004
With
Writ Petition (Civil) Nos. 295, 299, 346 and 525 of 2004, Writ Petition (Civil) Nos. 565 of 2003, Civil Appeal Nos. 5146, 5161, 5171, 5172, 5174, 5175, 5180, 5184, 5185, 5188, 5189, 5190, 5191, 5197 and 5198 of 2004
Decided on 11-2-2005
Counsel for the Parties :
For the Appearing Parties : Amarendra Sharan, Additional Solicitor General, (NP), Rakesh Dwivedi, Dr. Rajeev Dhavan, L.N. Rao, Sr. Advocate (NP), Ravindra Srivastava, Sr. Advocate (NP), Ravi Shankar Prashad, A.K. Ganguli, Ashok A. Desai, Sr. Advocates, Ms. Niranjana Singh, Ms. Vimla Sinha, Abhishek Chaudhary, Gaurav Bhatia, Adarsh Upadhyay, Vivek Singh, Lakshmi Raman Singh, Ravi Prakash, Chandra Prakash, Prakash Srivastava, M.K. Choudhary, Kunal Verma, Ms. Rashmi Rai, P.K. Ray, Advocate (NP), Raj Kumar Mehta, Chandra Shekhar, Shakil Ahmed Syed, J.K. Soni, Seeraj Bagga, Ms. Sureshta Bagga, Arvind Kumar, Ms. Laxmi Arvind, Ms. Jaya Sinha, Ms. Poonam Prasad, Roy Abraham, Ms. Seema Jain, Himinder Lal, Sunil Kumar, Himanshu Shekhar, Manik Vedsen, Suresh C. Gupta, Kamal Mohan Gupta, Krishan Prakash Dubey, Dinesh Kumar Garg, B.S. Bilowria, Rohit Pandey, D.K. Gupta, S.K. Bandyopdhyay, Raj Kumar Mehta, Ravish Chandra Agarwal, Advocate General (NP) for State of Chhattisgarh, Ms. Suparna Srivastava, Ms. Rajesh Srivastava, Ms. Deepti Singh, Rahul Srivastava, Amitesh Kumar, E.C. Vidya Sagar, Maninder Singh, Ms. Pratibha M. Singh, Angad Mirdha, Saurabh Mishra, Chava Badri Nath Babu, Bimal Roy Jad, V.K. Rao, Ms. Madhu Sikri, Jainendra Maldahiyar, Saket Sikri, Satish Kumar, Sanjeev Sachdeva, Ms. Priya Puri, V. Shekhar, S. Ganesh, Ms. Manjusha Narain, Rakesh Shrouti, B.K. Satija, Ms. Hetu Arora, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms. Anitha Shenoy, Sharan Dev Singh Thakur, P. Venkat Reddy, Anil Kumar Tandale, J.K. Soni, Ghanshyam Joshi, Dipak Kumar Jena, Avik Datta, V.K. Monga, Satyajit A. Desai, Venkateswara Rao Anumolu, Sunil Kumar, P.N. Jha, Ms. B. Vijayalakshmi Menon, Rakesh K. Sharma, Roy Abraham, Ms. Seema Jain, Himinder Lal, Y. Raja Gopala Rao, Ms. Sasmita Tripathy, Y. Ramesh, Suresh C. Gupta, Kunal Verma, Dr. S.K. Verma, Nikilesh Ramachandran, A. Deb Kumar, Sudarsh Menon, B.S. Sharma, Raj Kumar Mehta, Ms. Rakhi Ray, Ms. Mrinalini Chandy, Ms. Bina Gupta, Yash Pal Dhingra and M.T. George, Advocates.

Important point
Sections 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapan Aur Viniyaman) Adhiniyam 2002, empowering the State to incorporate and establish a university in an indiscriminate and mechanical manner without having any regard to the availability of any infrastructure, teaching facility or their financial resources are held as ultra vires the Constitution being contrary to the constitutional scheme.

Headnote:Chhattisgarh Niji Kshetra Vishwa­vidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002—Section 5, 6 as amended by 2004 Act—University Grants Commission Act, 1956—Section 22—Indian Medical Council Act, 1956—All India Council for Technical Education Act, 1987—Bar Council of India Act, 1956—Self Financed Private Universities—Provisions for incorporation and establishment—Validity of Sections 5 and 6 of the Act challenged—Writ petition filed with main averments that after coming into force of the Act, the State Government has been, simply by issuing notifications in the Gazette, establishing universities in an indiscriminate and mechanical manner—In a short span of about one year as many as 112 universities were ­established—Many of them had absolutely no buildings or campus and were running from one room tenements—Manner in which a University is notified by issuance of a Gazette notification u/s 5 and conferment of a juristic personality u/s 6 of the Act is contrary to constitutional scheme—Whether Sections 5 and 6 of the Act are liable to be struck down—(Yes)—All notifications issued thereunder notifying the Universities being invalid are liable to be struck down—State Government may take appropriate measures to have such ­institutions affiliated to the ­already ­existing State Universities in Chhattisgarh.

       Held : The State Legislature is undoubtedly empowered to legislate and make an enactment for incorporation and establishment of Universities in view of Entry 32 of List II and Entry 25 of List III. The “University” as a topic of legislation has not been introduced for the first time in the Seventh Schedule of the Constitution but was already there in the Government of India Act, where Entry 13 of List I related to Banaras Hindu University and Aligarh Muslim University and Entry 17 of List II was education including Universities other than those specified in Entry 13 of List I. The framers of the Constitution had the same concept of “University” in their mind as was there in the Government of India Act when they made the relevant entries in the Seventh Schedule of the Constitution. Keeping in view the principles of legislative practice, the word “University” should be given the same meaning as it was generally understood at the relevant time having due regard to what is ordinarily treated as embraced within that topic or subject. (Para 27)

       University is a whole body of teachers and scholars engaged at a particular place in giving and receiving instructions in higher branches of learning; and as such persons associated together as a society or corporate body, with definite organization and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, building and other property belonging to such body. Other necessary attributes of University are plurality of teachers teaching more than one higher faculties and other facilities for imparting instructions and research, provision for residence and must have certain standard of instructions providing for graduate and post-graduate levels of study. It pre-supposes existence of a campus, classrooms, lecture theatres, libraries, laboratories, offices, besides some playgrounds and also sport facility for overall development of personality of the students. However, under the provisions of the impugned Act, a proposal which is on paper and merely gives some kind of a plan or scheme to be done in future is notified as a University. When the Constitution has conferred power on the State to legislate on incorporation of University, any Act providing for establishment of the University must make such provisions that only an institution in the sense of University as it is generally understood with all the infrastructural facilities, where teaching and research on wide range of subjects and of a particular level are actually done, acquires the status of a University. The impugned Act does not at all establish a University, yet by issuing a notification conferring the legal status of a University to a Project Report (which is on paper only) bestows upon it a right to confer a degree, which right it gets by virtue of Section 22 of the UGC Act. The manner in which a University is notified by issuance of a Gazette notification under Section 5 and conferment of a juristic personality under Section 6 of the Act is clearly contrary to the constitutional scheme and is not contemplated by Article 246 of the Constitution. (Para 28)

       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 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. (Para 29)

       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 caliber 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 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, UGC Inspection of Universities Rules, 1960, 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. The 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 in so far as these Universities are concerned. Such incorporation of a University makes it impossible for the UGC to perform its duties and responsibilities of ensuring co-ordination and determination of standards. In absence of any campus and other infrastructural facilities, the 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. (Para 30)

       Preparing a Project Report on paper is not a difficult job and any number of sponsoring bodies can be created or formed in order to take advantage of the easy opportunity made available by the impugned Act. Persons with absolutely no knowledge in the subject may be awarded high degrees or other distinctions like a Ph.D., D.Lit., or D.Sc. This is bound to create havoc with the system of higher education in the country and would result in nullifying the main object for which University Grants Commission has been established and would render many provisions of the UGC Act unworkable and otiose. (Para 31)

       The whole scheme of the impugned Act, especially the effect of Sections 4, 5, 6 thereof and the result which it has led to in notifying as many as 112 Universities within a short span of one year on the basis of proposals made on paper with many or most of them having almost zero infrastructural facilities clearly shows that the relevant provisions of the Act have completely stultified the power of the Parliament under Entry 66 to make provision for co-ordination and determination of standards in institutions for higher education like Universities, the provisions of the UGC Act and also the functioning of University Grants Commission. Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the Constitution of India and are liable to be struck down. (Para 32)

       As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the Gazette Notifications notifying the Universities are liable to be quashed, all such Universities shall cease to exist. (Para 45)

       In ­order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a University whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be extended only if it fulfills the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by the All India Council of Technical Education, Medical Council of India, Dental Council of India or any other statutory authority and with their approval or sanction as prescribed by law. (Para 45)