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CASE NO.:

Writ Petition (civil) 19 of 2004

PETITIONER:

Prof. Yashpal & Anr.

RESPONDENT:

State of Chhattisgarh & Ors.

DATE OF JUDGMENT: 11/02/2005

BENCH:

CJI,G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:

JUDGMENT

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.

G.P. MATHUR, J.

1. Professor Yashpal, an eminent Scientist and former Chairman of

University Grants Commission, has filed Writ Petition No.19 of 2004 under

Article 32 of the Constitution by way of public interest litigation for

declaring certain provisions of The Chhattisgarh Niji Kshetra

Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 as ultra vires

and for quashing of the notifications issued by State of Chhattisgarh in the

purported exercise of power conferred by Section 5 of the said Adhiniyam

for establishing various universities.. The other petitioner who has joined in

the petition, is a resident of Chhattisgarh and is concerned with the quality of

education in his State. The respondent no.1 to the petition is the State of

Chhattisgarh, respondent no.2 is the University Grants Commission and

respondent nos.3 to 94 are the private universities which have been

established by the State of Chhattisgarh under the aforesaid Adhiniyam.

2. The Chhattisgarh Legislature enacted the Chhattisgarh Niji Kshetra

Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short

'the Act') which was published in the Gazette on 4.2.2002 to establish self-

financed private universities for higher education. Under Section 5 of the

Act the State has been empowered to incorporate and establish a university

by issuing a notification in the Gazette and Section 6 permits such university

to affiliate any college or other institution or to set up more than one campus

with the prior approval of the State Government. The main averments in

the petition are 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 without having

slightest regard to the availability of any infrastructure, teaching facility or

their financial resources. In a short span of about one year as many as 112

universities were established and many of them had absolutely no buildings

or campus and were running from one room tenements. There was

absolutely no regulation or supervision over them. The legislation has been

enacted in a manner which has completely done away with any kind of

control of University Grants Commission (for short 'UGC') over these

private universities. The guidelines issued by UGC on the courses being

taught and award of academic degrees has been given a complete go-by.

The universities issued brochures for award of all kinds of degrees like

"Member of the International Institute of Medical Sciences", "Fellow of the

International Institute of Medical Sciences" and many other similar degrees.

The universities are wholly incapable of imparting any education much less

a quality education in absence of basic infrastructure like classrooms,

libraries, laboratories or campus. Nevertheless by conferment of a legal

status of a university, they have been empowered to award degrees. The

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private universities are running professional courses without taking prior

permission from regulatory bodies such as All India Council of Technical

Education (AICTE), Medical Council of India (MCI), Dental Council of

India (DCI), etc. The requirement of obtaining prior permission from the

regulatory bodies has not been followed and the universities are not under

the control of any authority and are at liberty to grant degrees, diplomas and

certificates to gullible students. The State Government has not done any

verification or checking of universities after issuance of notification in the

Gazette, whether they fulfill any norms laid down by the statutory bodies,

which is essential for recognition of the degrees, diplomas and certificates

awarded by such universities. In absence of requisite permission from the

statutory bodies, the degrees and certificates awarded by such universities

would not be recognized by the professional organizations, as a result

whereof the students studying in such universities and obtaining the degrees

therefrom would suffer immense loss, both in terms of money and also the

time spent in completing the courses. It is further averred that the University

Grants Commission Act is made nugatory as private universities are offering

courses without subscribing to the standards laid down by the UGC and

there being no homogeneity of the course content, the degree awarded may

not be of any value. The private universities are offering unheard of courses

and degrees which are not part of schedule to the UGC Act, which is in clear

violation of Section 22 of the aforesaid Act and the Schedule appended

thereto. The minimum requirement of teaching staff as laid down in the

guidelines of UGC had also been given a complete go-by. Young students

are being misled in enrolling themselves in courses which do not have any

substantive content and the degrees offered by such private universities

would affect the standard of education at large which in turn will jeopardize

the educational system of the whole country and not that of State of

Chhattisgarh alone.

3. Some photographs have also been filed which show that a signboard

mentioning the name of the University is put over small room or shop on

first or second floor in some congested market area. That they are

functioning from small premises which are sometimes a single small room in

a commercial complex or a small tenement on the first or second floor of a

building or an ordinary flat or MIG house is evident from their address and a

few of them are being reproduced below by way of illustration :

Respondent No.3 : Thamath University, Raipur

Room No.201, IInd Floor

Raipur Commercial Complex

Jairam Complex, Raipur.

Respondent No.13 : I.I.L.M. University

Mishr Bhawan, 1st Floor

Tatyapara, Raipur.

Respondent No.36 : Supreme University

M.I.G. 6, Sector 3

Shankar Nagar, Raipur.

Respondent No.37 : E.M.P.I. University

C-9-12, 1st Floor

Ekatam Prishar

Rajbandha Maidan, Raipur.

Respondent No.42 : Jaipuria University, Raipur

1st Floor, Mishr Bhawan, Raipur.

Several such universities are functioning outside the State of

Chhattisgarh, and their addresses as given below demonstrate the said fact :

Respondent No.7 : N.I.I.L.M. University

11/66, Shershah Suri Marg

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Mohan Co-operative Industrial Estate,

New Delhi.

Respondent No.9 : Lovely University

Lovely Auto Complex

Dr. Ambedkar Chowk

Jalandhar City.

Respondent No.10 : Babu Banarasi Dass University

Babu Banarasi Dass Northern Indian Foundation

Upper Ground Floor, 338-384, S- Block

New Rajinder Nagar, New Delhi.

Respondent No.12 : Dr. Zakir Hussain National University

Unopcharik av Anvrat Shikshan Sansthan

Satellite Centre, Balley Road

Patna.

Respondent No.45 : Bio-Informatics, Bio-Tech. and Life Science

University, Raipur

Bio-Informatic Institute of India

B-5, Sector 3

Noida.

Respondent No.46 : Institute of Business Administration

(N.C.D. Office) Ground Floor

E-382, Greater Kailash Part II

New Delhi.

Respondent No.53 : Adarsh University of Science & Technology,

Chhattisgarh,

N.I.C.I. Society, 54, Todarmal Road

Bengali Market

New Delhi.

4. Writ Petition (Civil) No. 565 of 2003 has been filed by Gopal Ji

Agarwal with the same prayer, namely, that the Chhattisgarh Niji Kshetra

Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam 2002 be declared

as ultra vires being violative of Constitution of India, and also contrary to

the provisions of University Grants Commission Act, 1956, Indian Medical

Council Act, 1956, All India Council for Technical Education Act, 1987 and

Bar Council of India Act, 1956. A further prayer has been made that a writ

of prohibition may be issued restraining the private universities incorporated

under the aforesaid Act from imparting any education and conferring any

degrees or diplomas. The averments made in the writ petition are

substantially the same as made in the writ petition filed by Prof. Yash Pal,

that a large number of universities have been incorporated by merely issuing

gazette notifications though they do not have any kind of infrastructure or

teaching facility and are functioning from one room tenement in a second or

third floor in a residential or commercial building and without any teaching

staff. The universities have been established merely to confer degrees and

they have on their own created a large number of degrees and diplomas

which are totally unheard of. The universities had issued advertisements for

opening up study centres in different parts of the country for award of any

number of degrees and diplomas. By way of illustration, copies of

advertisements issued by some of the universities have been filed. One of

such university, namely, the Indian University, issued an advertisement

inviting applications for Nodal Service Centres/University Centres for

awarding the following kind of degrees and diplomas:

? Master of Biotechnology Administration (MBA) - 2 Yrs.

? Master of Insurance Management (MIM) - 2 Yrs.

? M. Tech in Bioinformatics - 2 Yrs.

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? M. Tech VLSI (Very Large Scale Intg. Circuits) - 2 Yrs.

? M. Tech Elect. Mechanics & Power Semi

Conductor Drive - 2 Yrs.

? M. Tech Energy Management Systems - 2 Yrs.

? M.Sc. Cheminformatics (Intg)/Bioinformatics(Intg) - 5 Yrs.

? M.Sc. Biotechnology (Intg.) - 5 Yrs.

? M.Sc. Bioinformatics/Biotechnology - 2 Yrs.

? B.Sc. with Bioinformatics/Microbiology/

Biotechnology - 3 Yrs.

? B.Sc. with Automobiles Science - 3 Yrs.

? PGD in Biotech Marketing - 1 Yr.

? PGD in Imaging (CT Scan) & (MRI) - 2 Yrs.

? PGD in Bioinformatics - 1.5 Yrs.

? PG Diploma in Cheminformatics - 1 Yr.

? PG Diploma in Mobile Technology - 1 Yr.

? PG Diploma in Energy Audit and Conservation - 1 Yr.

? PG Diploma in Acturial/Sciences in Bioinformatics- 1 Yr.

The writ petitioner, not knowing the correct facts, responded for

opening up a study centre and he was asked to deposit Rs. 50,000/- which

he did by two Demand Drafts. On enquiry regarding prior permission from

Medical Council of India, the Registrar of the Indian University issued a

certificate which reads as under:

" Certified that following PARA MEDICAL COURSES

are approved by INDIAN UNIVERSITY, RAIPUR.

1) B P T - 2 Year

2) Bachelor of Ophthalmology - 2 Year

3) B M L T - 4 Year

4) PG Diploma in Imaging (MRI) \026 1 Year

It is further certified that for Para Medical Course MCI

approval is not required and it is not covered by MCI

also."

It is further averred that the Indian University, Raipur also issued an

advertisement inviting applications for admission to certain types of

technical courses in its alleged campus at Graduate School of Business &

Administration, Greater Noida, which is in the district of Gautam Budh

Nagar, in the State of UP and it was mentioned therein that the candidates

may apply to the Registrar by sending a Bank Draft of Rs. 800/-. A

photocopy of the advertisement has been filed. It has thus been submitted

that though the private universities have no infrastructure for imparting any

kind of education, they were alluring people all over the country to open

study centres for which they were charging huge amount and also befooling

students to apply for admission to wholly unknown and unheard of

technical, medical and other professional courses which are not recognized

by any statutory authority, and thereby a substantial amount of money has

been collected.

5. In a stereotyped manner Gazette notifications were issued notifying a

University and by way of illustration one such notification is being

reproduced below :

"Raipur, the 11th October, 2002

No. F. 679/\005\005\005\005/02. \026In exercise of the powers

conferred by sub-Section (1) of Section 5 of the Chhattisgarh

Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman),

Adhiniyam, 2002 (No. 2 of 2002) for extension of

Higher/Technical Education in Chhattisgarh, hereby,

establishes a University known as "Indian University, Raipur"

with effect from the date of publication of this notification in

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the Chhattisgarh Gazette and the jurisdiction of the University

shall extend over whole of Chhattisgarh.

2. The Head Office of the University shall be at Raipur.

3. The State Government, hereby authorizes "Indian

University, Raipur" to conduct the syllabus and to grant

degree or diplomas for which it shall be recognized or

authorized as may be required under any other law for

the time being in force."

6. Several legal issues have also been raised in the writ petitions and the

principal being that the manner in which these private universities are

functioning would result in creating a complete chaos in the system of

higher education in the country and the expert bodies created by the Central

Government like, University Grants Commission, Medical Council of India,

All India Council for Technical Education etc. for coordination and

determination of standards in their own respective fields would not be able

to perform their statutory duty and would make their functioning not only

difficult but almost impossible.

7. The State of Chhattisgarh has filed brief but almost identical counter

affidavits in both the writ petitions. The main plea taken therein is that in

view of Entry 32 List II of Seventh Schedule to the Constitution, the State

has the legislative competence to make an enactment regarding

incorporation of a University. The impugned Act had been passed to

facilitate establishment of private Universities with a view to create

supplementary resources for assisting the State Government in providing

quality higher education. The notifications establishing the Universities

were issued on the basis of the representations made by the sponsoring

bodies as set out in their project reports. The State Government expected

that the Universities would make the requisite infrastructure including

campus, building, etc. and recruit qualified staff so as to provide higher

education in order to achieve the object for which the Universities were

established. However, the functioning of the Universities post notification

was dismal and completely belied the expectations which the State

Government had in that behalf, raising serious concern about the academic

interests of the students seeking admission therein. The State Legislature,

accordingly, enacted the Chhattisgarh Niji Kshetra Vishwavidyalaya

(Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004. After expiry of

the time limit fixed in the aforesaid amending Act, 59 Universities were de-

notified on account of their failure to comply with the amended provisions.

It is further averred that after the Act had been amended in the year 2004,

the petitioners' grievance has been completely met and consequently the

writ petitions deserve to be dismissed.

8. Before we advert to the principal submission of learned counsel for

the parties regarding the vires of Section 5 and 6 of the Act, it is necessary

to take note of the relevant constitutional provisions dealing with education

and Universities, both under Government of India Act, 1935, and the

Constitution.

SEVENTH SCHEDULE OF GOVERNMENT OF INDIA ACT, 1935

LIST 1 \026 FEDERAL LEGISLATIVE LIST

12. Federal agencies and institutes for the following purposes, that is

to say, for research, for professional or technical training, or for the

promotion of special studies.

13. The Banaras Hindu University and the Aligarh Muslim University.

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LIST II \026 PROVINCIAL LEGISLATIVE LIST

17. Education including Universities other than specified in paragraph

13 of List I.

33. The incorporation, regulation, and winding up corporations (not

being Corporations specified in List I or Universities);

unincorporated trading, literary, scientific, religious and other

societies and associations; co-operative societies.

SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA

LIST I \026 UNION LIST

63. The institutions known at the commencement of this Constitution

as the Banaras Hindu University, the Aligarh Muslim University

and the Delhi University; the University established in pursuance

of article 371E; any other institution declared by Parliament by law

to be an institution of national importance.

64. Institutions for scientific or technical education financed by the

Government of India wholly or in part and declared by Parliament

by law to be institutions of national importance.

65. Union agencies and institutions for \026

(a) professional, vocational or technical training, including the

training of police officers; or

(b) the promotion of special studies or research; or

(c) scientific or technical assistance in the investigation or

detection of crime.

66. Co-ordination and determination of standards in institutions for

higher education or research and scientific and technical education.

LIST II \026 STATE LIST

11. Education including universities, subject to the provisions of

Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.

(This Entry was deleted by Forty-second Amendment Act)

32. 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.

LIST III \026 CONCURRENT LIST

25. Education, including technical education, medical education and

universities, subject to the provisions of entries 63, 64, 65 and 66

of List I; vocational and technical training of labour.

The Constitution (Forty-second Amendment) Act, 1976 which came

into force on 3.1.1977 omitted Entry 11 from List II and transferred that

subject to be combined with Entry 25 of List III.

9. The foundation for a federal set up for the nation was laid in the

Government of India Act, 1935. Though in every respect the distribution of

legislative power between the Union and the States as envisaged in the 1935

Act has not been adopted in the Constitution but the basic framework is

same. It will be seen that Entry 17 in List II of Seventh Schedule in

Government of India Act specifically provided for Universities and the same

is now part of Entry 32 in List II of the Seventh Schedule of the

Constitution. Entries 17 and 33 of List II of Government of India Act have

been combined and made one composite entry (Entry 32) in List II of the

Seventh Schedule of the Constitution.

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10. How the word "Universities" occurring as a legislative head in the

Seventh Schedule should be interpreted, one has to look to the legislative

practice regarding interpretation of Constitutional entries. For this purpose,

it will be useful to refer to some well-known decisions.

In South Carolina v. United States, (1905) 199 US 437, the principle

was stated as under :

"To determine the extent of the grants of power,

we must, therefore, place ourselves in the position of the

men who framed and adopted the Constitution, and

inquire what they must have understood to be the

meaning and scope of those grants."

In Ex parte Grossman, (1925) 267 US 87, the U.S. Supreme Court

observed that the language of the Constitution cannot be interpreted safely

except by reference to the common law and to British institutions as they

were when the instrument was framed and adopted. In Croft v. Dunphy,

1933 AC 156, it was held as under :

"When a power is conferred to legislate on a

particular topic it is important, in determining the scope

of the power, to have regard to what is ordinarily treated

as embraced within that topic in legislative practice and

particularly in the legislative practice of the State which

has conferred the power. Thus in considering what might

be appropriately and legitimately enacted in relation to

"bankruptcy and insolvency" it was considered relevant

to discuss the usual contents of bankruptcy statutes."

Similarly, in Wallace Brothers and Co. Ltd. v. Commissioner of

Income-tax, Bombay, AIR 1948 PC 118, the Judicial Committee observed

that where Parliament has conferred a power to legislate on a particular topic

it is permissible and important in determining the scope and meaning of the

power to have regard to what is ordinarily treated as embraced within that

topic in the legislative practice of the United Kingdom. The object is to

ascertain the general conception involved in the words in the enabling Act.

11. In Constitutional Law of India by Seervai, the learned author has said

in para 2.12 (3rd ed.) that the golden rule of interpretation is that words

should be read in their ordinary, natural and grammatical meaning subject to

the rider that in construing words in a Constitution conferring legislative

power the most liberal construction should be put upon the words so that

they may have effect in their widest amplitude. This is subject to certain

exceptions and a restricted meaning may be given to words if it is necessary

to prevent a conflict between two exclusive entries.

12. The framers of the Constitution having adopted (with some

modification) the legislative entries on Universities from the Government of

India Act, 1935 made by the British Parliament, the full content and

amplitude of the entry can be comprehended by examining how a University

is understood and what is its concept in U.K. and U.S.A. whose pattern was

followed in several matters and which the founding fathers had in their

mind.

13. In Volume 15 Halsbury's Laws of England (Fourth ed. Reissue) what

is a University and how it is incorporated is described as under :

Para 256. General. A university is the whole body of teachers and

scholars engaged, at a particular place, in giving and

receiving instruction in the higher branches of learning;

such persons associated together as a society or corporate

body, with definite organization and acknowledged

powers and privileges (especially that of conferring

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degrees), and forming an institution for the promotion of

education in the higher or more important branches of

learning; also, the colleges, buildings and other property

belonging to such a body. Although the institutions to

which it refers are readily identifiable, precise and

accurate definition is difficult. The essential feature of a

university seems to be that it was incorporated as such by

the sovereign power.

Other attributes of a university appear to be the

admission of students from all parts of the world, a

plurality of masters, the teaching of one at least of the

higher faculties, namely theology, law or philosophy

(which in some definitions are regarded as identical) and

medicine, provision for residence and the right to confer

degrees, but possession of these attributes will not make

an institution a university in the absence of any express

intention of the sovereign power to make it one. A

university involves the relation of tutor and pupil; it is

charged with the supervision and upbringing of the pupil

under tuition. Incorporation was anciently effected by

papal grant or charter, and later by royal charter or Act of

Parliament.

The practice adopted in the case of the most recent

foundations is to incorporate the university by royal

charter, to which there is annexed a schedule containing

the original statutes of the university, and thereafter to

obtain the passing of a local Act of Parliament vesting in

the university the property and liabilities of any

institution which it replaces and making other necessary

provisions.

A copy of any application for a charter for the

foundation of any college or university which is referred

by the Queen in Council for the report of a committee of

the Privy Council must be laid before Parliament,

together with a copy of the draft charter, for not less than

30 days before the committee reports upon it.

In 15A American Jurisprudence 2d "University" has been defined as

under :

Para 1. Definitions.

Properly speaking, a "university" is an aggregation

or union of colleges. It is an institution in which the

education imparted is universal, embracing many

branches, such as the arts, sciences, and all manner of

higher learning, and which possesses the power to confer

degrees indicating proficiency in the branches taught.

The word "college" has been said to be employed

in the United States to indicate an institution of learning,

having corporate powers, and possessing the right to

confer degrees, and which, with reference to its

educational work, consists of the trustees, teachers, and

scholars, all of whom make up the membership of the

college and represent its active work. The term "college"

may also be used to indicate a building, or group of

buildings, in which scholars are housed, fed, instructed,

and governed while qualifying for university degrees,

whether the university includes a number of colleges or a

single college. In a broad sense, the terms "college" and

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"university" convey the same idea, differing only in

grade, with each indicating an institution of learning

consisting of trustees, teachers, and scholars as making

up its membership and representing its active work, or an

institution engaged in imparting knowledge to resident

students and possessing the right to confer degrees.

In the footnote to this paragraph reference is made to a decision which

has some kind of similarity with the case in hand and the footnote reads as

under :

A school offering correspondence courses in

professional and other educational subjects, sending

students textbooks and lessons to study, giving

examinations based thereon, and awarding diplomas or

degrees, but having no entrance requirements, resident

students, library, laboratory, or faculty, is not a

university. Branch v Federal Trade Com. (CA7) 141 F2d

31)

In the New Encyclopedia Britannica (15th ed) "University" has been

described as under :

(Page 165) University, institution of higher education, usually

comprising a liberal arts and sciences college and

graduate and professional schools and having the

authority to confer degrees in various fields of study.

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

\005\005\005\005\005

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

\005\005

(Page 186) Universities and students looked toward ways of

creating opportunities for a satisfying career outside

traditional roles for graduates in scholarship, teaching,

and the professions. The university's basic traditional

functions remain unchanged \026 enabling students to

learn from their cultural heritage, helping them to

realize their intellectual and creative abilities, and

encouraging them to become humane and responsible

people. The university expands knowledge across the

entire spectrum of disciplines, and it can add to the

understanding and enjoyment of life. It continues to

be needed for imaginative solutions to the problems of

society.

14. Shortly after independence on 4.11.1948 the Government of India

constituted a Commission known as "University Education Commission" of

which Dr. S. Radhakrishnan was the Chairman. Dr. Tara Chand, former

Vice-Chancellor, Allahabad University, Dr. Zakir Hussain, Vice-Chancellor,

Aligarh Muslim University, Dr. A. Lakshmanaswami Mudaliar, Vice-

Chancellor, Madras University, Dr. Meghnad Saha, Dean, Faculty of

Science, Calcutta University and 5 other eminent personalities in the field of

education were its members. The Commission gave a very long and

exhaustive report. Chapter II of the report deals with the aims of University

education and Para 2 of Part I is illustrative and the same is being

reproduced below :

"2. Universities as the Organs of Civilization \026 He

indeed must be blind who does not see that, mighty as are

the political changes, far deeper are the fundamental

questions which will be decided by what happens in the

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universities. Everything is being brought to the test of

reason, venerable theologies, ancient political

institutions, time-honoured social arrangements, a

thousand things which a generation ago looked as fixed

as the hills. If India is to confront the confusion of our

time, she must turn for guidance, not to those who are

lost in the mere exigencies of the passing hour, but to her

men of letters, and men of science, to her poets and

artists, to her discoverers and inventors. These

intellectual pioneers of civilization are to be found and

trained in the universities, which are the sanctuaries of

the inner life of the nation."

In the introductory paragraph of Chapter IV dealing with standards of

teaching, the Commission recorded its views in the following words :

The need for High Standards.

Introduction - It is the primary duty of a university to

maintain the highest standards of its teaching and

examinations. A university is a place of higher education

where the personality and capacities of the students are

developed to the utmost by teachers who should

themselves be at work at the frontiers of knowledge in

their respective fields. The success of a university is to

be judged as much by the type of graduate it turns out as

by the amount and quality of research contributed by its

teachers and research students. It must be clearly

recognized that there is no conflict involved between the

twofold function of a university to educate its members

and to advance the frontiers of knowledge \026 the two

functions are, in fact, complementary. Unless high

standards of teaching and examinations are maintained,

research will suffer, since research can continue

uninterruptedly only if there is a regular supply of

graduates well prepared by general education for

specialized research work. On the other hand, if research

is neglected by teachers, their teaching will lack vitality

and will rapidly become stale. A degree must always be

what a university makes it by the kind of teaching it

imparts and the type of intellectual and social life it

provides for its members. If our universities are to be the

makers of future leaders of thought and action in the

country, as they should be, our degrees must connote a

high standard of scholarly achievement in our graduates.

The Commission noted that many of the Universities did not compare

favourably with the best of British and American universities in respect of

their teaching and examination standards. Unless highest standards of

teaching in the Universities are ensured, the degree given by them will not

command recognition and respect. The Commission observed :

"\005\005\005Our universities should maintain the academic

character of their work on a level recognized as adequate

by the universities of other countries. Universities are

our national institutions, and to keep up our national

prestige, our degrees must be such as to command

international recognition\005\005\005"

15. The Government of India constituted a Committee in December, 1961

to consider broadly the organizational structure of the Universities in India

and to prepare the outline of a "Model Act" suited to their role and functions

of which Dr. D.S. Kothari, Chairman, UGC was the Chairman and several

other persons who were either Vice-Chancellors of Universities or were

connected with the field of education were members. In the concluding

part of the First Chapter, the Committee noted as under :

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"\005\005 The function of the university is not only to

preserve, disseminate and advance knowledge but also to

furnish intellectual leadership and moral tone to society.

No less important is the role of universities in promoting

national integration and a common culture, and in

bringing about the social transformation that is desired.

Finally, universities have also to provide trained

personnel to advance the country's prosperity by making

full use of modern knowledge. The organizational

pattern must enable the universities to achieve these

objectives."

These reports prepared by most learned and eminent educationists in

post independence era highlight the primary function of the Universities viz.

teaching and research and to provide trained and qualified personnel for the

progress of the nation.

16. Though incorporation of a University as a legislative head is a State

subject (Entry 32 List II) but basically University is an institution for higher

education and research. Entry 66 of List I is 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. 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

Gujarat University v. Shri Krishna AIR 1963 SC 703, a decision by a

Constitution Bench rendered prior to Forty-second Amendment when Entry

11 of List II was in existence, it was held that Item No.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 the 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 para 23, the Court held as under :

"\005\005\005\005\005\005\005\005 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 the Parliament.

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

\005\005\005\005\005\005\005\005. 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.

The following observations in paras 24 and 25 highlight the

supremacy of legislation made by the Parliament with reference to Entry 66:

"24. \005\005\005\005\005 The validity of the State legislation

on University education and as regards the education in

technical and scientific institutions not falling within

Entry 64 of List I would have to be judged having regard

to whether it impinges on the field reserved for the Union

under Entry 66. In other words, the validity of State

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legislation would depend upon whether it prejudicially

affects co-ordination and determination of standards, but

not upon the existence of some definite Union legislation

directed to achieve that purpose. If there be Union

legislation in respect of co-ordination and determination

of standards, that would have paramountcy over the State

law by virtue of the first part of Ar.254(1); even if that

power be not exercised by the Union Parliament the

relevant legislative entries being in the exclusive lists, a

State law trenching upon the Union field would still be

invalid.

25. \005\005\005\005\005\005\005 Item No.66 is a legislative head

and in interpreting it, unless it is expressly or of necessity

found conditioned by the words used therein, a narrow or

restricted interpretation will not be put upon the

generality of the words. Power to legislate on a subject

should normally be held to extend to all ancillary or

subsidiary matters which can fairly and reasonably be

said to be comprehended in that subject. Again there is

nothing either in item 66 or elsewhere in the Constitution

which supports the submission 'that the expression "co-

ordination" must mean in the context in which it is used

merely evaluation, co-ordination in its normal

connotation means harmonising or bringing into proper

relation in which all the things co-ordinated participate in

a common pattern of action. The power to co-ordinate,

therefore, is not merely power to evaluate, it is a power to

harmonise or secure relationship for concerted action.

The power conferred by item 66 List I is not conditioned

by the existence of a state of emergency or unequal

standards calling for the exercise of the power."

17. The same question was also examined in considerable detail in State

of Tamil Nadu & Anr. v. Adhiyaman Educational and Research Institute

1995 (4) SCC 104 and the conclusions drawn were summarized in para 41 of

the reports and sub-paras (i) and (ii) thereof are being reproduced below :

(i) The expression 'coordination' used in Entry 66 of the

Union List of the Seventh Schedule to the

Constitution does not merely mean evaluation. It

means harmonisation with a view to forge a uniform

pattern for a concerted action according to a certain

design, scheme or plan of development. It, therefore,

includes action not only for removal of disparities in

standards but also for preventing the occurrence of

such disparities. It would, therefore, also include

power to do all things which are necessary to prevent

what would make 'coordination' either impossible or

difficult. This power is absolute and unconditional

and in the absence of the valid compelling reasons, it

must be given its full effect according to its plain and

express intention.

(ii) To the extent that the State legislation is in conflict

with the Central legislation though the former is

purported to have been made under Entry 25 of the

Concurrent List but in effect encroaches upon

legislation including subordinate legislation made by

the Centre under Entry 25 of the Concurrent List or to

give effect to Entry 66 of the Union List, it would be

void and inoperative.

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18. In Osmania University Teachers Association v. State of Andhra

Pradesh & Anr. 1987 (4) SCC 671, the Court reiterated that it was 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 was of great importance to national

progress. After referring to the Constitution Bench decision in Kerala State

Electricity Board v. Indian Aluminium Co. 1976 (1) SCC 466, where it was

held that when an entry is in general terms in List II and part of that entry is

in specific terms in List I, the entry in List I takes effect notwithstanding the

entry in List II, the Court held as under in para 14 of the reports :

"14. Entry 25 List III relating to education including

technical education, medical education and universities has

been made subject to the power of Parliament to legislate

under Entries 63 to 66 of List I. Entry 66 List I and Entry

25 List III should, therefore, be read together. Entry 66

gives power to Union to see that a required standard of

higher education in the country is maintained. The

standard of Higher Education including scientific and

technical should not be lowered at the hands of any

particular State or States. Secondly, it is the exclusive

responsibility of the Central Government to coordinate

and determine the standards for higher education. That

power includes the power to evaluate, harmonise and

secure proper relationship to any project of national

importance. It is needless to state that such a co-ordinate

action in higher education with proper standards, is of

paramount importance to national progress. It is in this

national interest, the legislative field in regard to

'education' has been distributed between List I and List III

of the Seventh Schedule."

19. The interplay of Entry 66 List I and Entry 25 List III was again

examined by a Constitution Bench in Dr. Preeti Srivastava & Anr. v. State of

M.P. & Ors. 1999 (7) SCC 120 in the context of lowering of standards by

the State for admission to a Post Graduate course in a Medical College and it

was held that the State cannot while controlling education in the State

impinge on standards in institutions for higher education because this is

exclusively within the purview of the Union Government. While

considering the question whether norms for admission have any connection

with the standards of education and that they are only covered by Entry 25

of List III, it was observed that any lowering of the norms of admission does

have an adverse effect on the standards of education in the institutions of

higher education. The standard of education in an institution depends on

various factors like, (i) the caliber of teaching staff; (ii) a proper syllabus

designed to achieve high level of education in a given span of time; (iii) the

student-teacher ratio; (iv) equipment and laboratory facilities; (v) caliber of

the students admitted; (vi) adequate accommodation in the institution; (vii)

the standard of examinations held including the manner in which the papers

are set and examined; and (viii) the evaluation of practical examinations

done. It was pointed out that education involves a continuous interaction

between the teachers and the students. The base of teaching, the level to

which teaching can rise and the benefit which the students ultimately receive

depends as much on the caliber of the students as on the caliber of the

teachers and the availability of adequate infrastructural facilities.

20. The consistent and settled view of this Court, therefore, is that in spite

of incorporation of Universities as a legislative head being in the State List,

the whole gamut of the University which will include teaching, quality of

education being imparted, curriculum, standard of examination and

evaluation and also research activity being carried on will not come within

the purview of the State legislature on account of a specific Entry on co-

ordination and determination of standards in institutions for higher education

or research and scientific and technical education being in the Union List

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for which the Parliament alone is competent. It is the responsibility of the

Parliament to ensure that proper standards are maintained in institutions for

higher education or research throughout the country and also uniformity in

standards is maintained.

21. In order to achieve the aforesaid purpose, the Parliament has enacted

the University Grants Commission Act. First para of the Statement of

Objects and Reasons of the University Grants Commission Act, 1956 (for

short "UGC Act") is illustrative and consequently it is being reproduced

below :

"The Constitution of India vests Parliament with

exclusive authority in regard to 'co-ordination and

determination of standards in institutions for higher

education or research and scientific and technical

institutions'. It is obvious that neither co-ordination nor

determination of standards is possible unless the Central

Government has some voice in the determination of

standards of teaching and examination in Universities,

both old and new. It is also necessary to ensure that the

available resources are utilized to the best possible effect.

The problem has become more acute recently on account

of the tendency to multiply Universities. The need for a

properly constituted Commission for determining and

allocating to Universities funds made available by the

Central Government has also become more urgent on this

account.

In the second para it is said that the Commission will also have the

power to recommend to any University the measures necessary for the

reform and improvement of University education and to advise the

University concerned upon the action to be taken for the purpose of

implementing such recommendation. The Commission will act as an expert

body to advise the Central Government on problems connected with the co-

ordination of facilities and maintenance of standards in Universities.

22. The preamble of the UGC Act says - an Act to make provision for the

coordination and determination of standards in Universities and for that

purpose to establish a University Grants Commission. Section 2(f) of this

Act defines a University and it means a University established or

incorporated by or under a Central Act, a Provincial Act or a State Act, and

includes any such institution as may, in consultation with the University

concerned, be recognized by the Commission in accordance with the

regulations made in this behalf under this Act. Clause 12 provides that it

shall be the general duty of the Commission to take, in consultation with the

Universities or other bodies concerned, all such steps as it may think fit for

the promotion and co-ordination of University education and determination

and maintenance of standards of teaching, examination and research in

Universities, and for the purpose of its functions under the Act, the

Commission may do all such acts enumerated in sub-sections (a) to (j)

thereof. Sections 22 and 23 are important and are being reproduced below :

22. Right to confer degrees - (1) The right of conferring or

granting degree 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 purpose of this section, "degree' means any such

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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. \026 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.

23. It is important to note that in view of Section 22 of UGC Act, the right

of conferring or granting degree can be exercised only by University or an

institution deemed to be University under Section 3 of the aforesaid Act or

institution especially empowered by an Act of Parliament to confer or grant

degrees. What is a "degree" and what it connotes is not given in the UGC

Act but the meaning of the word as given in dictionaries and standard books

is as under :

Webster's Third New : A title conferred upon students by a college,

International Dictionary university, or professional school upon

completion of a unified programme of

study carrying a specified minimum of

credits, passing of certain examinations,

and often completion of a thesis or other

independent research project.

2. A grade or class of membership attained in

a ritualistic order or society denoting a

stage of proficiency often after a set ordeal

or examination.

Wharton's Law Lexicon : The state of a person, as to be a barrister-at-law,

or to be a Bachelor or Master of Arts of a

University.

Chambers's Twentieth : A mark of distinction conferred by universities,

Century Dictionary whether earned by examination or granted as a

mark of honour.

P. Ramanatha Aiyar : A mark of distinction conferred upon a student

Law Lexicon (2nd Ed) for proficiency in some art or science; University

diploma of specified proficiency.

Encyclopedia Americana

"DEGREE" - the title conferred by a college or

university, signifying that a certain step or grade has been

attained in an area of learning. The award of a diploma

conferring the bachelor's degree marks completion of

undergraduate study. The master's and doctor's degrees

reward graduate study. Other degrees constitute

evidence of preparation for professional work \026 the M.D.

(doctor of medicine) for example.

In the 20th century, however, the M.A. is granted in

American universities and in those of England and the

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Commonwealth of Nations (apart from Oxford and

Cambridge) on the basis of study beyond the B.A. and

the presentation (usually) of a thesis. An exception is

Scotland, where the M.A. has been the first degree

conferred in all six universities ever since their founding.

The bachelor of philosophy and bachelor of letters

degrees are given for work beyond the M.A.

The New Encyclopedia Britannica

"Degree" \026 in education, any of several titles

conferred by colleges and universities to indicate the

extent of academic achievement. The hierarchy of

degrees, dating from the 13th century, once resembled the

medieval guild system. In the United States and Great

Britain, the modern gradation of academic degrees is

usually bachelor (or baccalaureate), master, and doctor.

With some exceptions, intermediate degrees, such as

those of bachelor and master, have been abandoned in the

universities of continental Europe.

A degree conferred by a University is a proof of the fact that a person

has studied a course of a particular higher level and has successfully passed

the examination certifying his proficiency in the said subject of study to such

level. In the case of a Doctorate degree, it certifies that the holder of the

degree has attained a high level of knowledge and study in the concerned

subject by doing some original research work. A University degree confers

a kind of a status upon a person like a graduate or a post-graduate. Those

who have done research work and have obtained a Ph.D., D.Lit., or D.Sc.

degree become entitled to write the word "Doctor" before their name and

command certain amount of respect in society as educated and

knowledgeable persons. That apart the principal advantage of holding a

University degree is in the matter of employment, where a minimum

qualification like a graduate, post-graduate or a professional degree from a

recognized institute is prescribed. Even for those who do not want to take

up a job and want to remain in private profession like a doctor or lawyer,

registration with Medical Council or Bar Council is necessary for which

purpose a degree in medicine or law, as the case may be, from an institution

recognized by the said bodies is essential. An academic degree is, therefore,

of great significance and value for the holder thereof and goes a long way in

shaping his future. The interest of society also requires that the holder of an

academic degree must possess the requisite proficiency and expertise in the

subject which the degree certifies.

24. Mere conferment of degree is not enough. What is necessary is that

the degree should be recognized. It is for this purpose that the right to

confer degree has been given under Section 22 of UGC Act only to a

University established or incorporated by or under a Central Act, Provincial

Act or 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. Sub-section (3) of this Section provides that "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. The value and importance of such degrees which are

recognized by Government was pointed out by a Constitution Bench in

Azeez Basha v. Union of India AIR 1968 SC 662.

25. Having seen what is the concept of a University and what is the value

of a degree awarded by it, the Scheme and the provisions of the impugned

Act may now be examined. The Preamble of the Act says that it is an Act

to provide for establishment of self financed private Universities for

imparting Higher Education and to regulate their functions and for matters

connected therewith or incidental thereto. Some of the provisions of the

Act which have a bearing on the controversy involved are being reproduced

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below :

Section 2. In this Adhiniyam, unless the context otherwise requires -

(a) "Ordinance" means an Ordinance of the

University;

(b) "Sponsoring Body" in relation to a University means-

(i) a Society registered under the Madhya Pradesh

Societies Registrikaran Adhiniyam, 1973 (No. 44 of

1973)

(ii) any Public Trust; or

(iii) a Company registered under Section 25 of the

Companies Act, 1956 (No. 1 of 1956);

(c) "Statute" means a Statute of the University;

(d) "University" means a University established under sub-

section (1) of Section 5.

3. The objects of the University shall be -

1. to provide instructions, teaching and training in Higher

Education and make provisions for research,

advancement and dissemination of knowledge;

2. to create higher levels of intellectual abilities;

3. to establish state of the art facilities for education and

training;

4. to carry out teaching and research and offer continuing

education programmes;

5. to create centres of excellence for research and

development and for sharing knowledge and its

application;

6. to provide consultancy to the industry and public

organizations;

7. to establish main campus in Chhattisgarh and to have

study centres at different places in India and other

countries;

8. to establish examination centres;

9. to institute degrees, diplomas, certificates and other

academic distinctions on the basis of examination, or any

other method of evaluation;

10. to pursue any other objective as may be approved by the

State Government;

11. to ensure that the standard of the degrees, diplomas,

certificates and other academic distinctions are not lower

than those laid down by AICTE/NCTE/UGC/MCI and

Pharmacy Council etc;

4. (1) An application containing the Project Report to establish

A University for carrying out any or all of the objects

enumerated in section 3 of this Adhiniyam shall be made

to the State Government by the Sponsoring Body along

with such fee as may be prescribed.

(2) The Project Report shall contain the following

particulars, namely --

(a) the objects of the University along with the details

of the Sponsoring Body;

(b) the extent and the status of the University and the

availability of land;

(c) the nature and the type of programmes of study

and research to be undertaken in the University

during a period not less than the next five years;

(d) the nature of faculties, courses of study and

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research proposed to be started;

(e) the campus development such as building,

equipment and structural amenities;

(f) the phased outlays of capital expenditure for a

period not less than 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

the Sponsoring Body and other sources;

(i) the scheme for the 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 and the

extent of concessions or rebates in fee or freeship

and scholarship for students belonging to the

Scheduled Tribes and Scheduled Castes, belonging

to economically weaker sections, in lieu of land

grants if any, from the State Government, subject

to the condition that the number of students getting

concessions and freeships or scholarships shall not

be less than twenty two and one half percent of the

total number of seats. The proposed fee structure

shall also indicate the rationale for the varying

rates of fee that would be levied on non resident

Indians and students of other nationalities;

(k) the years of experience and expertise in the

concerned disciplines at the command of the

Sponsoring Body as well as the financial

resources;

(l) the system to select students for admission to the

courses of study at the University;

(m) such other details as may be prescribed by rules

framed under this Adhiniyam.

(3) The State Government, on receipt of the Project Report

shall make such enquiry as it may deem necessary within forty

five days from the date of submission of the Project Report.

(4) If the State Government is satisfied with the proposal to

establish the University, it may, subject to such conditions as

may be specified, accord the sanction for the same.

5. (1) The State Government may by notification in the Gazette

establish a University by such name and with such

jurisdiction and location of campus as may be specified

therein having regard to -

(a) the desirability to establish a University;

(b) recognition or authorization as may be required

under any other law for the time being in force to

conduct the syllabus and to grant degrees or

diplomas or awards.

(2) Every notification issued under sub-section (1) shall be

laid on the table of the Legislative Assembly.

6. (1) Every University established under sub-section (1) of

section 5 shall be a body corporate by the name notified

under the said section having perpetual succession and a

common seal, and may sue and be sued by the said name.

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(2) the University established under sub-section (1) of

section 5 may, with the prior approval of the State

Government, affiliate any College or other institution or

set up more than one campus."

Section 9 provides that the University shall not be entitled to receive

any grant or other financial assistance from the Central Government, State

Government or any other authority except for meeting any amount towards

the fee payable by students belonging to socially disadvantaged or weaker

sections of society or for conducting any study for research purposes, etc.

26. Section 3 of the Act enumerates the objects of the University. Sub-

section (1) of Section 4 provides that an application containing the Project

Report to establish a University for carrying out any or all of the objects

enumerated in Section 3 of the Act shall be made to the State Government

by the sponsoring body. Sub-section (2) of Section 4 provides that the

Project Report shall contain the particulars which have been enumerated

from clauses (a) to (m) in the said Sub-section. The Project Report is to

merely indicate the availability of the land and also the details of the Scheme

for mobilization of resources and generation of funds. The Project Report is

in the nature of a proposal where some details have to be furnished

regarding the type of courses of study and research to be undertaken in the

University during the period not less than next five years, the nature of

faculty and courses of study proposed to be started, the campus development

such as building, equipment and structural amenities proposed to be made

and phased outlays of the capital expenditure for a period not less than next

five years. Sub-section (3) says that the State Government on receipt of the

Project Report shall make such enquiry as it may deem necessary within 45

days from the date of submission of the Project Report. Sub-section (4)

says that if the State Government is satisfied with the proposal to establish

the University, it may, subject to such conditions as may be specified, accord

sanction for the same. Therefore, the requirement of Section 4 is

submission of an application containing Project Report which will merely

indicate availability of land and some proposals and schemes for generation

of funds and mobilization of resources and also proposal for development of

building etc. and courses of study proposed to be started. It is this Project

Report which merely contains some proposals and schemes for future

implementation which is accorded sanction by the State Government.

Thereafter comes Section 5 which says that the State Government may by

notification in the Gazette establish a University by such name and with

such jurisdiction and location of campus, as may be specified therein having

regard to the desirability to establish a University. The effect of these

provisions is that a Project Report on paper only, which will merely be a

proposal or a scheme for doing something in future, will be notified as a

University by issuing a notification to that effect in the Gazette. Sub-

section (1) of Section 6 confers some kind of a juristic personality on the

University so created by notification in the Gazette which in substance and

reality is a Project Report by saying that the University so established shall

be a body corporate by the name notified having perpetual succession and a

common seal and may sue and be sued by the said name. Sub-section (2)

of Section 6 confers a very wide power on the University so created to

affiliate any college or other institutions or set up more than one campus

with the approval of the State Government.

27. 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

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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.

28. As shown earlier, 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.

29. 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.

30. Entry 66 which deals with co-ordination and determination of

standard in institutions for higher education or research and scientific and

technical institutions is in Union List and the 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 v. R.K. Chhabra 1984 (2) SCR 883 and Osmania University

Teachers Association v. State of Andhra Pradesh 1987 (4) SCC 671). The

Act has been enacted to ensure that there is co-ordination 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

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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.

31. The inter se evaluation of merit of candidates is often required to be

done while making selection for some higher or specialized course of study

or in the matter of employment. One of the important functions to be

performed by the UGC is co-ordination and determination of standards in

institutions for higher education so that some kind of uniformity is

maintained in level of teaching and examination and also award of degrees

by various Universities. The impugned enactment, however, enables a

sponsoring body, without having any kind of teaching facility to award

degrees. In view of clauses (8) and (9) of Section 3 of the Act, a University

can be established only to establish examination centres or just to institute

degrees, diplomas, certificates and other academic distinctions on the basis

of examination or any other method of evaluation anywhere and without any

pre-determined standards. The possibility that such Universities which

award degrees without having any teaching facility and without imparting

any education will do so only for the purpose of making money is writ large.

The fact that the amendments made in the Act in 2004 (referred to later in

paragraph 34 of the judgment) making it mandatory to create an endowment

fund of Rs.2 crores and having provision of 15 acres of land have been

challenged by many Universities speaks volumes of their intention.

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.

32. Any State legislation which stultifies or sets at naught an enactment

validly made by Parliament would be wholly ultra vires. We are fortified in

our view by a Constitution Bench decision in R. Chitralekha v. State of

Mysore AIR 1964 SC 1823 where power of the State under Entry 11 List II

(as it then existed), and Entry 25 List III qua Entry 66 List I came up for

consideration. Subba Rao, J. after quoting the following passage from

Gujarat University vs. Shri Krishna AIR 1963 SC 703 :

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"The State has the power to prescribe the syllabi

and courses of study in the institutions named in Entry 66

(but not falling within entries 63 to 65) and as an incident

thereof it has the power to indicate the medium in which

instruction should be imparted. But the Union

Parliament has an overriding legislative power to ensure

that the syllabi and courses of study prescribed and the

medium selected do not impair standards of education or

render the coordination of such standards either on an All

India or other basis impossible or even difficult"

enunciated the following principle defining the contours of the legislative

powers of States vis-`-vis Union so as to steer clear of any overlap or

collision:

"This and similar other passages indicate that if the law

made by the State by virtue of entry 11 of List II of the

Seventh Schedule to the Constitution makes impossible

or difficult the exercise of the legislative power of the

Parliament under the entry "Co-ordination and

determination of standards in institutions for higher

education or research and scientific and technical

institutions" reserved to the Union, the State law may be

bad. This cannot obviously be decided on speculative

and hypothetical reasoning. If the import of the State law

providing for such standards on entry 66 of List I is so

heavy or devastating as to wipe out or appreciably

abridge the central field, it may be struck down. But that

is a question of fact to be ascertained in each

case\005\005\005\005.."

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.

33. Dr. Dhawan, learned senior counsel for the petitioners in Writ Petition

No.19 of 2004, has also pointed out certain other infirmities in the impugned

Act. Section 4 provides that a University may be established for carrying

out "any or all" of the objectives enumerated in Section 3 of the Adhiniyam.

The objectives mentioned in clauses (1) to (5) are the normal objectives of a

University. However, a University cannot be established only to provide

consultancy to the industry and public organizations [clause (6)] or to

establish examination centres [clause (8)] or to institute degrees, diplomas,

certificates and other academic distinctions on the basis of examination or

any other method of evaluation [clause (9)]. Since sub-section (1) of

Section 4 uses the expression "for carrying out any or all of the objects", it is

obvious that a University can be established only for any one of the

aforesaid objectives. This is clearly a colourable piece of legislation being

beyond the legislative competence of the State legislature as the relevant

entries in List II and List III of Seventh Schedule of the Constitution do not

contemplate creation or establishment of such kind of a University.

34. The Act was amended by the Chhattisgarh Niji Kshetra

Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004

(hereinafter called "the amending Act"), which was published in the Gazette

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on 17.3.2004. By this amending Act some provisions were substituted and

some new provisions were added. Clauses (e) and (j) inserted in Section 2

read as under :

(e) "main campus" means the campus of the

university where main office of the university is situated

and where the Vice-Chancellor and Registrar reside and

where not less than three University Teaching

Departments/Schools of studies are located.

(j) "Regulatory Commission" means the Regulatory

Commission established under the Adhiniyam."

Sections 4, 5, 9 and 10 of the amending Act read as under :

"4. For Sub-sections (10) and (11) of Section 3 of the

Principal Adhiniyam, the following Sub-sections shall be

substituted; namely:-

"(10) To ensure that the standard of degrees,

diplomas, certificates and other academic

distinctions are not lower than those laid down by

AICTE, NCTE, UGC, MCI, Pharmacy Council,

and such agency/agencies established by the

Central Government for regulation of education

and the Regulatory Commission; and

(11) To pursue any other objective as may be

approved by the Regulatory Commission."

5. For Sub-section (1) of Section 4 of the Principal

Adhiniyam, the following Sub-sections shall be

substituted; namely :-

"(1) (a) An application containing the Project Report

to establish a university for carrying out any or all

the objectives enumerated in Section 3 of the

Adhiniyam shall be made to the Regulatory

Commission by Sponsoring Body alongwith fee

and such form as may be prescribed , at least one

year before the date from which it intends to start

the university.

(b) The Sponsoring Body shall submit

alongwith its application as per (a) above,

(i) Proof of having established an Endowment

Fund of Rs.2 crore;

(ii) Proof of being in possession of 15 acres of

land, in case the main campus is proposed to

be established

within the Municipal Corporation Limits of

Raipur; or 25 acres of land in case the main

campus is proposed to be established

elsewhere in the State and in addition, if the

land has been obtained on lease, the period

of lease should be at least 30 years. In case,

the Sponsoring Body does not possess the

required land, it shall furnish proof of

having deposited an additional sum of Rs.2

crore in the manner prescribed.

Withdrawals out of this additional fund shall

be permitted by the Regulatory Commission

for the purchase of land for the use of the

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University.

Provided that where the main campus of the

University is proposed to be established in a

Scheduled Area of the State, only fifty percent of

the amounts in (i) and (ii) above need to be

deposited.

(c) The Endowment Fund shall be used as

security deposit to ensure that the University

complies with the provisions of the Adhiniyam

and functions as per the provision of the

Adhiniyam, the Statues and the Act. The

Regulatory Commission shall have the power to

forfeit a part of whole of the Endowment Fund, in

case of non-compliance in the manner as may be

prescribed.

(d) The Endowment Fund shall be invested in

the manner as may be prescribed.

(e) The Sponsoring Body shall be permitted to

use income from the Endowment Fund for the

development of the University.

(1-A) A University already established in the State

under the provisions of the Adhiniyam, shall

comply with the provisions of clauses (b) to (e)

of Sub-section (1) of Section 4 above by 30th

June, 2004 or else the Notification issued by the

Government under Sub-section (1) of Section 5

of the Adhiniyam shall be liable to be cancelled

on the recommendations of the Regulatory

Commission. In the event of such de-notification

of the University, completion of courses, conduct

of examinations, award of the degrees to the

students of the University may be assigned to

another University in such a manner that the

interests of the students are not affected.

Expenditure made in this behalf shall be made

good from the General Fund of the University

concerned."

9. For Sub-section (1) of Section 5 of the Principal

Adhiniyam, the following shall be substituted; namely

(1) (a) The State Government on receipt of the advice of

the Regulatory Commission under Sub-section

(4) of Section 4 of the Adhiniyam, may declare,

by notification in official gazette, that the

university is established by such name and with

such jurisdiction and location of main campus,

from such date as may be mentioned in the

notification.

(b) All such notification issued under Sub-section (1)

of Section 5 of the Adhiniyam prior to coming

into force of the Chhattisgarh Niji Kshetra

Vishwavidyalaya (Sthapana Aur Viniyaman)

Sansodhan Adhiniyam 2004, shall be included as

Schedule \026 I of the Adhiniyam and hereafter,

notification issued regarding establishment of a

University under the provisions of this

Adhiniyam , shall form part of the said Schedule

\026 I in chronological order.

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(c) All the provisions of the Adhiniyam shall apply

to Universities included in Schedule I.

10. After Sub-section (2) of Section 6 of the Principal

Adhiniyam, the following shall be substituted; namely:-

"(2) On its notification under Sub-section (1) of Section

5, the University shall establish its main campus in

the State of Chhattisgarh on the land referred to in

Sub-section (1) of Section 4 and for that purpose

shall create a built up area of at least 25,000 Sq.ft.

in the form of buildings and ancillary structures

within a period of 2 years from the date of such

notification. In the case of Universities which

have already been notified before this Sansodhan

Adhiniyam, the period of 2 years shall be reckoned

from the date of coming in force of this Sansodhan

Adhiniyam.

(3) All disputes arising as a result of the provisions

made in this Adhiniym shall be settled by a court

of law located in the State of Chhattisgarh."

Section 24 of the principal Act was also substituted by a new

provision which provides for setting up of a Regulatory Commission for the

purpose of ensuring appropriate standards of teaching, examinations,

research, protection of the interests of the students and ensuring reasonable

service conditions of employees while University has full freedom to

function. The Regulatory Commission shall function under the general

control of the Visitor and shall consist of a Chairman, two full time and not

exceeding two part-time members to be appointed by the Visitor. Sub-

section (9) of Section 24 provides that it shall be the duty of the Regulatory

Commission to take in consultation with the University and other bodies

concerned with regulatory functions of the higher education system in the

country such as UGC, AICTE, NCTE, MCI, Pharmacy Council and such

agency/agencies established by the Central Government for regulation of

education, or such steps, as it considers necessary for determination and

maintenance of standards of teaching, examination and research in the

University.

35. The amending Act of 2004 does not make any appreciable change in

the matter of issuing a notification for establishment of a University. Under

the amending Act, Regulatory Commission is to be established by the

Visitor (Governor). The application containing the Project Report shall be

made to the Regulatory Commission one year before the date from which it

intends to start the University along with proof of having established an

endowment fund of Rs.2 crores which shall be used as security deposit to

ensure that the University complies with the provisions and functions as per

the provisions of the Act. In addition proof of being in possession of 15

acres of land in case the main campus is proposed to be established within

the municipal corporation limits of Raipur otherwise 25 acres of land has to

be furnished. Where the land has been obtained on lease, the period of lease

should be at least 30 years. It further provides that if the sponsoring body

does not possess the required land, it shall furnish proof of having deposited

an additional sum of Rs.2 crores in the manner prescribed. The Regulatory

Commission on receipt of the Project Report, proof of creation of the

endowment fund and possession of land or in lieu thereof proof of deposit of

additional fund and if satisfied with the proposal to establish the University,

may advise the State Government to issue a notification. Section 5 provides

that the State Government on receipt of the advice of the Regulatory

Commission may declare by notification in Official Gazette that the

University is established. Here again, without any infrastructure and without

the teaching facilities having been provided, the proposal on paper is

notified as a University. Section 4(1)(b)(ii) mentions "possession of land"

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and not "ownership". It is not difficult to speculate whether the heavy

expenditure involved in making construction of buildings (classrooms,

lecture halls, offices and hostels, etc.), libraries and laboratories would at all

be undertaken on land which has been taken on lease for a short period of 30

years. Thus, the amended Sections 5 and 6 suffer from the same vice as the

unamended provisions and are liable to be struck down as being ultra vires.

36. In exercise of power conferred by Section 26 of the UGC Act, the

University Grants Commission has made the UGC (Establishment of and

Maintenance of Standards in Private Universities) Regulations, 2003. The

Regulations have been made with the object of providing for a regulatory

mechanism for establishment and operation of private Universities and for

safeguarding the interests of the student community with adequate emphasis

on the quality of education and to avoid commercialization of higher

education and also to maintain standards of teaching, research and

examination. Regulation 1.2 provides that the same shall apply to every

private University established by or incorporated under a State Act, before

or after the commencement of these Regulations. Regulation 1.5 provides

that any private University which has started functioning before the

commencement of these Regulations shall ensure adherence to these

Regulations within a period of three months from the notification thereof

and failure to comply with this requirement shall render any degree/diploma

awarded by a private University as unspecified in terms of Section 22 (3) of

the UGC Act and shall invite penalty under Section 24 of the said Act.

Regulations 3.1, 3.2, 3.6 and 3.7 are important and they are being

reproduced below :

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.

3.6 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.

37. Regulation 3.3 puts restriction on establishment of a University

outside the State. Regulation 5 provides consequences of violation and lays

down that if the Commission is satisfied that a 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 orders prohibiting the

private University from offering any course for award of the degree or

diploma. Similarly, the UGC is empowered to take action against a private

University awarding first degree and/or a post-graduate degree/diploma,

which is not specified by the UGC and any private University continuing

such programme and awarding unspecified degree shall be liable for penalty

under Section 24 of the UGC Act.

38. Shri Amarendra Sharan, learned Additional Solicitor General

appearing for UGC, has submitted that Section 5(1) of the impugned Act

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which permits establishment of a University merely by an executive action

of issuing a notification in the Gazette is illegal. The University Grants

Commission Act, a law made by Parliament with reference to Entry 66 List

I, having empowered the UGC to make Regulations, any provision of an

enactment made by the State Legislature concerning higher education which

is in conflict with the Regulations, would be ultra vires, as held in sub-para

(ii) of para 41 of State of Tamil Nadu v. Adhiyaman Educational and

Research Institute (supra). He has referred to Regulation 3.1 of University

Grants Commission (Establishment of and Maintenance of Standards in

Private Universities) Regulation, 2003 which lays down that 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.

He has also submitted that this Court had clearly ruled in Prem Chand Jain v.

R.K. Chhabra 1984 (2) SCR 883, that a University established by special

legislation alone can have the right to confer degrees, where while referring

to Section 2(f) and 23 of the UGC Act it was said as under :

"\005\005\005.. The word "established" or "incorporated"

referred to Acts under which universities are established

or incorporated. Several universities in this country

have been either established or incorporated under

special statutes, such as the Delhi University Act, the

Banaras Hindu University Act, the Allahabad University

Act etc. In these cases, there is a special Act either of

the Central or the Provincial or the State legislature

establishing and incorporating the particular universities.

There is also another pattern \026 where under one

compendious Act several universities are either

established or incorporated \026 for instance, the Madhya

Pradesh Universities Act, 1973. The definition of

university and provisions in S.23 of the Act refer to Acts

of the Central, Provincial or the State legislatures by

which one or more universities are established or

incorporated and not to institutions incorporated under a

general statute providing for incorporation.

.\005\005\005\005\005\005\005\005..\005\005\005\005\005\005\005\005\005\005\005\005\005\005

\005\005\005 'Education including universities' was a State

subject until by the 42nd Amendment of the Constitution

in 1976, that entry was omitted from the State list and,

was taken into entry 25 of the concurrent list. But as

already pointed out the Act essentially intended to make

provisions for the coordination and determination of

standards in universities and that, as already indicated, is

squarely covered under entry 66 of list I. While

legislating for a purpose germane to the subject covered

by that entry and establishing a University Grants

Commission, Parliament considered it necessary, as a

regulatory measure, to prohibit unauthorized conferment

of degrees and diplomas as also use of the word

'university' by institution which had not been either

established or incorporated by special legislation.

\005\005\005\005\005\005\005."

In view of Regulation 3.1, a private University can only be established

either by a separate Act or by one compendious Act where the legislature

specifically provides for establishment of the said University. Though an

attempt has been made in Section 5(1)(b) of the amended Act in this regard,

but the same does not conform to the Regulations inasmuch as the initial

notification notifying in the Official Gazette that the University is

established, is done by the executive order and not by any Act of legislature.

39. Shri Rakesh Dwivedi, learned senior counsel, who appeared amicus

curiae, has rightly submitted that though Entry 32 in List II is in general

terms dealing with "incorporation, regulation and winding up of

corporations other than those specified in List I and Universities", but

incorporation of a company is entirely different from incorporation of a

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University and they are conceptually different. Sections 3, 3(1)(i), 12, 13,

26, 33 and 34 of the Companies Act relate to incorporation of a Company.

It need not have a prior business and a mere statement of a lawful purpose in

the Memorandum of Association is enough. If a Company is unable to

achieve its objective and is unable to carry on business, the shareholders

may suffer some financial loss, but there is absolutely no impact on society

at large. However, a University once incorporated gets a right to confer

degrees. A University having no infrastructure or teaching facility of any

kind would still be in a position to confer degrees and thereby create a

complete chaos in the matter of co-ordination and maintenance of standards

in higher studies which would be highly detrimental for the whole nation.

A University may, therefore, be established either by the State in exercise of

its sovereign power which would obviously be through a legislative

enactment. In the case of a private University it is necessary that it should

be a pre-established institution for higher education with all the

infrastructural facilities and qualities which may justify its claim for being

conferred with the status of a University and only such an institution can be

conferred the legal status and a juristic personality of a University.

40. Shri Rakesh Dwivedi has also submitted that insofar as private

Universities are concerned, the word "or" occurring in the expression

"established or incorporated" in Sections 2 (f), 22 and 23 of the UGC Act

should be read as "and". He has submitted that the normal meaning of the

word "established" is to bring into existence and in order to avoid the

situation which has been created by the impugned enactment where over 112

Universities have come into existence within a short period of one year of

which many do not have any kind of infrastructure or teaching facility, it

will be in consonance with the constitutional scheme that only after

establishment of the basic requisites of a University (classrooms, library,

laboratory, offices and hostel facility etc.) that it should be incorporated and

conferred a juristic personality. The word "or" is normally disjunctive and

"and" is normally conjunctive but at times they are read vice-versa to give

effect to the manifest intentions of the legislature, as disclosed from the

context. If literal reading of the word produces an unintelligible or absurd

result "and" may be read for "or" and "or" may be read for "and". (See

Principles of Statutory Interpretation by G.P. Singh 7th ed. Page 339, and

also State of Bombay v. RMD Chamarbaugwala AIR 1957 SC 699 at 709

and Mazagaon Dock v. CIT AIR 1958 SC 861). We are of the opinion that

having regard to the Constitutional scheme and in order to ensure that the

enactment made by the Parliament, namely University Grants Commission

Act is able to achieve the objective for which it has been made and the UGC

is able to perform its duties and responsibilities, and further that the State

enactment does not come in conflict with the central legislation and create

any hindrance or obstacle in the working of the later, it is necessary to read

the expression "established or incorporated" as "established and

incorporated" insofar as the private Universities are concerned.

41. Dr. Dhawan has also drawn the attention of the Court to certain other

provisions of the Act which have effect outside the State of Chhattisgarh and

thereby give the State enactment an extra territorial operation. Section 2(f)

of the amended Act defines 'off-campus centre' which means a centre of the

University established by it outside the main campus (within or outside the

State) operated and maintained as its constituent unit having the university's

complement of facilities, faculty and staff. Section 2(g) defines "off-shore

campus" and it means a campus of the university established by it outside

the country, operated and maintained as its constituent unit, having the

university's complement of facilities, faculty and staff. Section 3(7) says

that the object of the University shall be to establish main campus in

Chhattisgarh and to have the study centres at different places in India and

other countries. In view of Article 245 (1) of the Constitution, Parliament

alone is competent to make laws for the whole or any part of the territory of

India and the legislature of a State may make laws for the whole or any part

of the State. The impugned Act which specifically makes a provision

enabling a University to have an off-campus centre outside the State is

clearly beyond the legislative competence of the Chhattisgarh legislature.

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42. The amending Act of 2004 came into force on 17.3.2004. Section

4(1-A) which was inserted by this amendment provided that a University

already established in the State under the provisions of the Adhiniyam shall

comply with the provisions of clauses (b) to (e) of sub-section (1) of Section

4 by 30th June, 2004 or else the notification issued by the Government under

sub-section (1) of Section 5 of the Adhiniyam shall be liable to be cancelled

on the recommendations of the Regulatory Commission. These provisions

related to creation of an endowment fund of Rs.2 crores and requirement of

land. It appears that as many as 59 Universities were denotified as they did

not comply with the requirements of the aforesaid provision. Learned State

counsel made a statement that one more University was proposed to be

denotified but the same could not be done on account of an interim order of

Court. Many of the private Universities have filed writ petitions in this

Court and also in the High Court of Chhattisgarh (which were later on

transferred to this Court) challenging the provisions of the amending Act.

The main challenge is regarding proof of being in possession of 15 acres of

land in case the main campus is proposed to be established within the

municipal corporation limits of Raipur or otherwise 25 acres of land and to

the establishment of an endowment fund of Rs.2 crores. The principal

ground raised by Shri Ravindra Srivastava and other learned counsel for the

Universities is that the provisions are arbitrary, the conditions imposed

therein are very onerous and further such conditions could not be imposed

on already existing Universities. It is also urged that the amending Act has a

retrospective operation. In our opinion, the challenge raised has hardly any

substance. In order to establish a University, there must be adequate land on

which the campus may be made and necessary infrastructural facilities

provided. No University can come into existence without a proper campus

which requires land. Similarly, for those who want to establish a

University, a sum of Rs.2 crores is a very small amount. It will be seen that

Section 4(1)(c) provides that endowment fund shall be used as security

deposit to ensure that the University complies with and functions as per the

Act. In Azeez Basha v. Union of India (supra), the history of establishment

of Aligarh Muslim University has been given. Though in the year 1877 the

Viceroy laid the foundation stone for the establishment of Muhammadan

Ango-Oriental College, Aligarh, which over a period of time became a

flourishing institution, yet, when a demand was made to establish a

University, the Government of India made a condition that at least Rs.30

lakhs must be collected and thereafter the University was established by the

1920 Act. It is extremely difficult to visualize the real value and purchasing

power of Rs.30 lakhs of the year 1920 at the present juncture. For those

who want to establish a University, a sum of Rs.2 crores is just a pittance.

The fact that many of the private Universities have challenged the provisions

of the amending Act itself shows their intention and purpose that they do not

want to create any infrastructure but want to have the right of conferring

degrees and earn money thereby. However, it is not necessary to examine

the challenge raised to the amending Act in detail, as we have already held

that Sections 5 and 6 are wholly ultra vires and all notifications issued

thereunder notifying the Universities being invalid are liable to be struck

down.

43. Shri Ravi Shankar Prashad, learned senior counsel for the State of

Chhattisgarh, has submitted that the impugned Act was passed in order to

attract private capital as the State does not have enough funds to establish

educational institutions and Universities. The Policy of Government of

India has undergone a change since 1991 and emphasis is on privatization.

The Act was enacted so that facility for higher education in the State of

Chhattisgarh may be improved and a large volume of students may get

opportunity to pursue higher studies. He has also submitted that the UGC

itself has made regulations governing admission and fee in private non-aided

professional institutions which makes reference to joint venture between a

private trust or society and the State Government. The enactment, it has

been urged, is an experiment in the changing world scenario where the trend

is towards globalization. Learned counsel has further submitted that the

amending Act makes it mandatory that the main campus of the University

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should be situated in the State of Chhattisgarh and the Regulatory

Commission has been established which will ensure a foolproof monitoring

of all the private Universities. He has urged that Regulation 3.3.1 of the

UGC Regulations which requires that off-campus centres or study centres

shall be set up with the prior approval of UGC and that of the State

Government where the centre is proposed to be opened, is ultra vires.

44. There is hardly any merit in the submission raised. The impugned

Act which enables only a proposal of a sponsoring body to be notified as a

University is not likely to attract private capital and a University so notified

cannot provide education of any kind much less of good quality to a large

body of students. What is necessary is actual establishment of institutions

having all the infrastructural facilities and qualified teachers to teach there.

Only such colleges or institutions which impart quality education allure the

best students. Until such institutions are established which provide high

level of teaching and other facilities like well equipped libraries and

laboratories and a good academic atmosphere, good students would not be

attracted. In the current scenario, students are prepared to go to any corner

of the country for getting good education. What is necessary is a large

number of good colleges and institutions and not Universities without any

teaching facility but having the authority to confer degrees. If good

institutions are established for providing higher education, they can be

conferred the status of a deemed University by the Central Government in

accordance with Section 3 of UGC Act or they can be affiliated to the

already existing Universities. The impugned Act has neither achieved nor is

capable of achieving the object sought to be projected by the learned counsel

as it enables a proposal alone being notified as a University.

45. 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. Shri Amarendra Sharan, learned

Additional Solicitor General has submitted that the UGC had conducted an

inquiry and it was found that most of the Universities were non-existent, but

the report was not placed before the Court as the complete exercise had not

been done. Learned counsel for the Universities have seriously disputed

this fact and have submitted that the Universities are functioning. We have

not gone into this question as it is purely factual. 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.

46. In view of the discussions made above, Writ Petition (C) No.19 of

2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh & Ors.) and Writ

Petition (C) No.565 of 2003 (Gopalji Agarwal Vs. Union of India & Ors.)

are allowed and provisions of Section 5 and 6 of the Chhattisgarh Niji

Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 are

declared to be ultra vires and are struck down. As a consequence of such

declaration, all notifications issued by the State Government in the Gazette

in the purported exercise of power under Section 5 of the aforesaid Act

notifying the Universities (including respondent nos.3 to 94) are quashed

and such Universities shall cease to exist. If any institutions have been

established by such Universities, steps may be taken for their affiliation to

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already existing State Universities in accordance with the direction

contained in paragraph 45 above. Parties would be at liberty to approach

the High Court if any dispute arises in implementation of this direction. All

Writ Petitions, Civil Appeals and Transferred Cases filed by the private

Universities are dismissed.

47 Before parting with the case, we would like to place on record our

appreciation of the valuable assistance rendered by Shri Rakesh Dwivedi,

who appeared on the Court's request as an amicus curiae.