Full Judgment Text
upk PIL(L).80.2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (LODGING) NO.80 OF 2011
Suresh Patilkhede )
of Thane, Adult, Indian Inhabitant )
residing at 403/A, Snow White Co.op. Hsg.Soc. Ltd. )
Hans Road, Khopat, Panchpakhadi, Thane (W) 400601 )..Petitioner
Versus
1) The Chancellor )
Universities of Maharashtra having his office at )
Raj Bhavan, Malabar Hill, Mumbai 400 035. )
2) State of Maharashtra )
through the Government Pleader, High Court )
(O.S.) having his office at P.W.D Building )
High Court Compound, Fort, Mumbai 400 032 )
3) The Acting Vice Chancellor )
University of Pune, having its office at )
Ganesh Khind, Pune 411 007. )
4) The Registrar )
University of Pune, having his office at )
Ganesh Khind, Pune 411 007. )
5) Justice Shri Mukul Mudgal (Retd.) )
through Nodal Officer, Shri R. Narayanan )
Registrar, Institute of Social and Economic )
Change, Nagarbhavi, Bangalore 560072 )
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6) Dr. R.S. Deshpande )
Member Search Committee )
through Nodal Officer Shri R. Narayanan )
Registrar, Institute of Social and Economic )
Change, Nagarbhavi, Bangalore 560072 )
7) Shri Sanjay Kumar )
the Principal Secretary to Government of )
Maharashtra, Higher & Technical Education )
Department, Mantralaya, Mumbai 400 032. )
8) The University Grants Commission )
having its office at Bahadur Shah Zafar Marg )
New Delhi 110 002. )Respondents
Mr. A.V. Anturkar along with Mr. Pankaj Kowli i/b V.B. Tiwari & Co.
for the Petitioner.
Mr. Darius Khambata, Advocate-General, with Mr. D.A. Nalawade,
Government Pleader and Mrs.Anjali Helekar for Respondent Nos.1, 2
and & 7.
Mr. Girish Kulkarni with Ms. Swati Deshmukh for Respondent Nos.3
and 4.
Mr. Rui Rodriques for Respondent No.8.
CORAM : MOHIT S. SHAH, C.J. &
N.M. JAMDAR, J.
Judgment Reserved On : 24 April, 2012
Judgment Pronounced On : 11 May, 2012
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JUDGMENT : (Per Chief Justice)
This Public Interest Litigation raises interesting
questions about the role of University Grants Commission (UGC) in
appointment of Vice Chancellor of a University governed by the
provisions of the Maharashtra Universities Act, 1994 ('MU Act').
2. The petitioner has challenged the appointment of Search
Committee for recommending the panel of suitable persons for
selection of the Vice Chancellor of Pune University on the ground that
the appointment of the Search Committee by the Chancellor in
accordance with the provisions of Section 12 of MU Act is not in
conformity with the provisions of Regulation 7.3.0 of the University
Grants Commission (Minimum Qualifications for Appointment of
Teachers and other Academic Staff in Universities and Colleges and
Measures for the Maintenance of Standards in Higher Education)
Regulations, 2010 (“ the UGC Regulations, 2010”) made under the
University Grants Commission Act, 1956 (“the UGC Act”).
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3. The Chancellor of Pune University (Governor of
Maharashtra) formed a three member Search Committee comprising
(i) Mr. Justice Mukul Mudgal (Retired), Former Chief
Justice of Punjab & Haryana High Court
(Chairman),
(ii) Dr. R.S. Deshpande, Director, Institute of Social
and Economic Change, Bangalore; and
(iii) Mr. Sanjay Kumar, Principal Secretary to
Government of Maharashtra, Higher & Technical
Education Department, Mumbai,
for recommending suitable nominations for the post of Vice
Chancellor of Pune University. Chairman of the Search Committee
issued an advertisement, which was published in the newspapers
dated 4 November 2011 (Exhibit “G”) inviting
applications/nominations from eminent academicians who fulfill the
qualifications required for the post of Vice Chancellor, Pune
University as prescribed by the Higher & Technical Education
Department of the State Government vide its order dated 27 May
2009. The applications/nominations were required to reach on or
before 5 December 2011.
4. The petitioner herein submitted representation dated 23
November 2011 to the Chancellor objecting to the procedure adopted
for appointment of Vice Chancellor of Pune University on the ground
that it was in violation of University Grants Commission Regulations,
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2009 which came to be gazetted on 30 June 2010. The present
petition came to be filed on 19 December 2011. While issuing notice
on 6 January 2012, it was clarified that there was no ad-interim stay
against the interviews scheduled to be held on 9 January 2012. The
interviews were held and the Search Committee submitted its
recommendations to the Chancellor. Since the University Grants
Commission (UGC) had not sent instructions to its counsel for more
than a month inspite of service of notice, on 14 February 2012 this
Court passed an order specifically highlighting the controversy raised
in the petition and calling upon the UGC to make clear whether UGC
had any objection or reservation regarding composition of the Search
Committee. It was also made clear that since the Search Committee
had already conducted interviews and the Chancellor was in the
process of finalising the selection for making appointment, UGC shall
treat the matter as most urgent.
5. Thereafter by affidavit dated 6 March 2012 of its Deputy
Secretary, UGC has taken the stand that the UGC Regulations, 2010
(including those for appointment of Pro-Chancellor and Vice
Chancellor) under the UGC Act, 1956 are traceable to Entry 66, List
I, VII Schedule of the Constitution and the Regulations are, therefore,
binding on the State Government and the concerned universities and
that, therefore, in view of Regulation 7.3.0 of UGC Regulations,
2010, the Search Committee in question cannot be termed valid for
the purpose of selection and appointment to the post of Vice
Chancellor of Pune University.
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6. In view of the above stand of UGC, the controversy is
essentially between the petitioner in this Public Interest Litigation
supported by UGC on the one hand and the State of Maharashtra and
the Chancellor of Pune University (Governor of Maharashtra) on the
other hand.
7. Mr.Anturkar, learned Counsel for the Petitioner, and
Mr.Rui Rodriques, learned Counsel for the UGC, have raised the
following contentions :-
(i) Parliament alone is competent to make legislation
on the subjects covered by Entry 66 in List I (Union
List) VII Schedule i.e. “co-ordination and
determination of standards in institutions for higher
education or research and scientific and technical
institutions.” The standards of a university would
depend to a great extent on the incumbent of the
post of academic head of the University i.e. Vice
Chancellor and, therefore, Section 26(1)(e) and (g)
of the UGC Act empower the delegate of
Parliament i.e. UGC to lay down the minimum
educational qualifications and also to determine the
method of appointment of Vice Chancellor of any
University regulated by the provisions of the UGC
Act.
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(ii) the power of the State Legislature to make laws
under Entry 11 in List II prior to 1977 and under
Entry 25 in List III (Concurrent List) from 1977
onwards will be only in respect of subjects
excluding co-ordination and determination of
standards in institutions of higher learning. Hence,
the State Legislature and State Government can
prescribe salaries and allowances payable to Vice
Chancellor of a University governed by the MU
Act and similarly make other provisions like
salaries and allowances payable to other teaching
staff of the Universities in the State of
Maharashtra, but the State legislature or the State
Government as its delegate have no legislative
competence to prescribe the qualifications for
appointment of Vice Chancellor or to prescribe the
method of appointment of Vice Chancellor. Hence
the constitution of the Search Committee by the
Chancellor under Section 12(1) of the MU Act,
1994, is illegal, because it does not include a
nominee of UGC and, therefore, it is not in
conformity with Regulation 7.3.0 of the UGC
Regulations, 2010 framed under the UGC Act,
1956.
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(iii) the provisions of Section 12 and particularly Section
12(1)(a) of the MU Act, 1996 are repugnant to the
provisions of the UGC Act, 1956 and the UGC
Regulations, 2010.
(iv) UGC Regulations, 2010 are made by UGC in exercise of
the powers under Section 26(1)(e) and (g) of the UGC
Act, 1956. Since the UGC Act was enacted by
Parliament in exercise of its law making power under
Article 246 read with Entry 66 in List I of the VII
Schedule, the UGC Regulations, 2010 over-ride the
provisions of Section 12 of the MU Act which is enacted
by the State legislature. Reliance has been placed on the
decisions of the Supreme Court in
(a) Bharati Vidyapeeth (Deemed University)
and others vs State of Maharashtra and
1
another ,
(b) Prof. Yashpal and another vs State of
2
Chattisgarh and others ,
(c) State of Tamilnadu and another vs
Adhiyaman Educational & Research
3
Institute and another ,
1 (2004)11 SCC 755
2 (2005) 5 SCC 420
3 (1995) 4 SCC 104
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8. On the other hand, Mr.Darius Khambata, learned
Advocate-General for the State of Maharashtra and the Chancellor of
Pune University (Governor of Maharashtra) as well as Mr.Girish
Kulkarni, learned Counsel for the Pune University have opposed the
petition and made the following submissions :
(a) When Parliament enacted UGC Act in 1956
its legislative power was traceable to Article 246(1)
read with Entry 66 in List I (Union List) in the VII
Schedule. Hence, UGC (as delegate of Parliament)
has no power to go beyond Entry 66. Section 26 of
the UGC Act also, therefore, did not give the
delegate (UGC) any power wider than the power
which Parliament had under Entry 66 in the Union
List.
(b) Section 26(1) (e) of the UGC Act conferring
power on UGC to make Regulations consistent
with the Act and the Rules made thereunder
confers power to make Regulations “defining the
qualifications that should ordinarily be required of
any person to be appointed to the teaching staff of
the University, having regard to the branch of
education in which he is expected to give
instruction”. It is submitted that Vice Chancellor
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is not a member of the teaching staff of the
University as the Vice Chancellor is not expected
to give instructions. The Vice-Chancellor is the
Administrative Head of the University for day to
day administration and even to make
appointments to the posts of teachers like
Professors, Assistant Professors and Lecturers.
(c) Even otherwise Section 26(1)(e)
provides that the UGC may make Regulations
defining the qualifications that should ordinarily
be required of any person to be appointed to the
teaching staff. The UGC Regulations are,
therefore, recommendation in nature as held by
the Supreme Court in Delhi University v/s. Raj
4
Singh & ors. The State Government order dated
15 February 2011 at Exhibit “F” enumerates those
Regulations which are adopted by the State
Government out of the UGC Regulations, 2010,
since Regulations 7.2.0 and 7.3.0 are not adopted,
non-adoption of a recommendation or directory
provision like Regulation 7.3.0 would not render
the State legislation invalid or unconstitutional.
4 1994 Supp.(3) SCC 516
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(d) Clause (g) of Section 26(1) of the UGC Act conferring
power on UGC to make regulations for “regulating the maintenance
of standards and the co-ordination of work or facilities in
Universities” cannot be treated as conferring power to prescribe the
qualifications for the post of Vice Chancellor or to lay down the
method of appointment of Vice Chancellor. Clause (g) merely
provides for maintenance of standards of work or facilities in
Universities and the co-ordination of work or facilities in the
Universities.
(e) In view of the above constitutional and legislative
scheme, UGC Regulations, 2010 go far beyond the Regulation
making power of UGC and, therefore, Regulation 7.3.0 must be
treated as invalid.
(f) In any view of the matter, even proceeding on the
assumption that Section 26(1)(e) and (g) of the UGC Act confer
power on UGC to make Regulations prescribing the qualifications
and mode of selection and method of appointment of Vice Chancellor
of a University governed by the UGC Act, 1956 and, therefore,
Regulation 7.3.0 of the UGC Regulations, 2010 is valid, even then
such Regulations, being in the nature of subordinate legislation,
cannot over-ride the provisions of Section 12 of the MU Act, 1994
which is a plenary legislation made by the State legislature.
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(g) Relying on the following decisions, it was vehemently
submitted by the learned Advocate General that though a Central
legislation can over-ride a State legislation in a Concurrent List to the
extent of the repugnancy or inconsistency in view of the provisions of
Article 246(3), a subordinate legislation under a Central legislation
cannot over-ride a plenary legislation made by the State Legislature.
(i) Ch. Tika Ramji and others vs the State of Uttar Pradesh
5
and others, (paragraph 41).
(ii) Chief Inspector of Mines and another vs Karam Chand
6
Thapar, etc. (paragraphs 11, 20, 21).
7
(iii) Meghraj Kothari vs Delimitation Commission and others
(paragraphs 14 and 21).
(iv) Indian Express Newspapers (Bombay) Private Ltd and
8
others vs Union of India and others (paragraph 25).
(v) Kerala Samsthana Chethu Thozhilali Union vs State of
9
Kerala and others, ( paragraph 17).
(vi) M/s.New India Sugar Mills Ltd. Vs State of Bihar and
10
others, (paragraphs 16 and 29.)
5
AIR 1956 SC 676
6
AIR 1961 SC 838
7 AIR 1967 SC 669
8 (1985) 1 SCC 641
9 (2006) 4 SCC 327 (Page 337)
10
AIR 1996 Patna 94 (Pages 101, 107)
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Constitutional and Statutory provisions:
9. Art.246. Subject-matter of laws made by Parliament and by the
Legislatures of States.-
(1) Notwithstanding anything in clauses (2) and (3), Parliament
has exclusive power to make laws with respect to any of the
matters enumerated in List I in the Seventh Schedule..
(2) Notwithstanding anything in clause (3), Parliament, and,
subject to clause (1), the Legislature of any State also, have
power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule.
(3) Subject to clauses (1) and (2), the Legislature of any State
has exclusive power to make laws for such State or any part
thereof with respect to any of the matters enumerated in List II
in the Seventh Schedule.
(4) …......
Seventh Schedule-
List- I
Entry 66- Co-ordination and determination of standards in
institutions for higher education or research and scientific and
technical institution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (LODGING) NO.80 OF 2011
Suresh Patilkhede )
of Thane, Adult, Indian Inhabitant )
residing at 403/A, Snow White Co.op. Hsg.Soc. Ltd. )
Hans Road, Khopat, Panchpakhadi, Thane (W) 400601 )..Petitioner
Versus
1) The Chancellor )
Universities of Maharashtra having his office at )
Raj Bhavan, Malabar Hill, Mumbai 400 035. )
2) State of Maharashtra )
through the Government Pleader, High Court )
(O.S.) having his office at P.W.D Building )
High Court Compound, Fort, Mumbai 400 032 )
3) The Acting Vice Chancellor )
University of Pune, having its office at )
Ganesh Khind, Pune 411 007. )
4) The Registrar )
University of Pune, having his office at )
Ganesh Khind, Pune 411 007. )
5) Justice Shri Mukul Mudgal (Retd.) )
through Nodal Officer, Shri R. Narayanan )
Registrar, Institute of Social and Economic )
Change, Nagarbhavi, Bangalore 560072 )
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6) Dr. R.S. Deshpande )
Member Search Committee )
through Nodal Officer Shri R. Narayanan )
Registrar, Institute of Social and Economic )
Change, Nagarbhavi, Bangalore 560072 )
7) Shri Sanjay Kumar )
the Principal Secretary to Government of )
Maharashtra, Higher & Technical Education )
Department, Mantralaya, Mumbai 400 032. )
8) The University Grants Commission )
having its office at Bahadur Shah Zafar Marg )
New Delhi 110 002. )Respondents
Mr. A.V. Anturkar along with Mr. Pankaj Kowli i/b V.B. Tiwari & Co.
for the Petitioner.
Mr. Darius Khambata, Advocate-General, with Mr. D.A. Nalawade,
Government Pleader and Mrs.Anjali Helekar for Respondent Nos.1, 2
and & 7.
Mr. Girish Kulkarni with Ms. Swati Deshmukh for Respondent Nos.3
and 4.
Mr. Rui Rodriques for Respondent No.8.
CORAM : MOHIT S. SHAH, C.J. &
N.M. JAMDAR, J.
Judgment Reserved On : 24 April, 2012
Judgment Pronounced On : 11 May, 2012
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JUDGMENT : (Per Chief Justice)
This Public Interest Litigation raises interesting
questions about the role of University Grants Commission (UGC) in
appointment of Vice Chancellor of a University governed by the
provisions of the Maharashtra Universities Act, 1994 ('MU Act').
2. The petitioner has challenged the appointment of Search
Committee for recommending the panel of suitable persons for
selection of the Vice Chancellor of Pune University on the ground that
the appointment of the Search Committee by the Chancellor in
accordance with the provisions of Section 12 of MU Act is not in
conformity with the provisions of Regulation 7.3.0 of the University
Grants Commission (Minimum Qualifications for Appointment of
Teachers and other Academic Staff in Universities and Colleges and
Measures for the Maintenance of Standards in Higher Education)
Regulations, 2010 (“ the UGC Regulations, 2010”) made under the
University Grants Commission Act, 1956 (“the UGC Act”).
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3. The Chancellor of Pune University (Governor of
Maharashtra) formed a three member Search Committee comprising
(i) Mr. Justice Mukul Mudgal (Retired), Former Chief
Justice of Punjab & Haryana High Court
(Chairman),
(ii) Dr. R.S. Deshpande, Director, Institute of Social
and Economic Change, Bangalore; and
(iii) Mr. Sanjay Kumar, Principal Secretary to
Government of Maharashtra, Higher & Technical
Education Department, Mumbai,
for recommending suitable nominations for the post of Vice
Chancellor of Pune University. Chairman of the Search Committee
issued an advertisement, which was published in the newspapers
dated 4 November 2011 (Exhibit “G”) inviting
applications/nominations from eminent academicians who fulfill the
qualifications required for the post of Vice Chancellor, Pune
University as prescribed by the Higher & Technical Education
Department of the State Government vide its order dated 27 May
2009. The applications/nominations were required to reach on or
before 5 December 2011.
4. The petitioner herein submitted representation dated 23
November 2011 to the Chancellor objecting to the procedure adopted
for appointment of Vice Chancellor of Pune University on the ground
that it was in violation of University Grants Commission Regulations,
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2009 which came to be gazetted on 30 June 2010. The present
petition came to be filed on 19 December 2011. While issuing notice
on 6 January 2012, it was clarified that there was no ad-interim stay
against the interviews scheduled to be held on 9 January 2012. The
interviews were held and the Search Committee submitted its
recommendations to the Chancellor. Since the University Grants
Commission (UGC) had not sent instructions to its counsel for more
than a month inspite of service of notice, on 14 February 2012 this
Court passed an order specifically highlighting the controversy raised
in the petition and calling upon the UGC to make clear whether UGC
had any objection or reservation regarding composition of the Search
Committee. It was also made clear that since the Search Committee
had already conducted interviews and the Chancellor was in the
process of finalising the selection for making appointment, UGC shall
treat the matter as most urgent.
5. Thereafter by affidavit dated 6 March 2012 of its Deputy
Secretary, UGC has taken the stand that the UGC Regulations, 2010
(including those for appointment of Pro-Chancellor and Vice
Chancellor) under the UGC Act, 1956 are traceable to Entry 66, List
I, VII Schedule of the Constitution and the Regulations are, therefore,
binding on the State Government and the concerned universities and
that, therefore, in view of Regulation 7.3.0 of UGC Regulations,
2010, the Search Committee in question cannot be termed valid for
the purpose of selection and appointment to the post of Vice
Chancellor of Pune University.
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6. In view of the above stand of UGC, the controversy is
essentially between the petitioner in this Public Interest Litigation
supported by UGC on the one hand and the State of Maharashtra and
the Chancellor of Pune University (Governor of Maharashtra) on the
other hand.
7. Mr.Anturkar, learned Counsel for the Petitioner, and
Mr.Rui Rodriques, learned Counsel for the UGC, have raised the
following contentions :-
(i) Parliament alone is competent to make legislation
on the subjects covered by Entry 66 in List I (Union
List) VII Schedule i.e. “co-ordination and
determination of standards in institutions for higher
education or research and scientific and technical
institutions.” The standards of a university would
depend to a great extent on the incumbent of the
post of academic head of the University i.e. Vice
Chancellor and, therefore, Section 26(1)(e) and (g)
of the UGC Act empower the delegate of
Parliament i.e. UGC to lay down the minimum
educational qualifications and also to determine the
method of appointment of Vice Chancellor of any
University regulated by the provisions of the UGC
Act.
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(ii) the power of the State Legislature to make laws
under Entry 11 in List II prior to 1977 and under
Entry 25 in List III (Concurrent List) from 1977
onwards will be only in respect of subjects
excluding co-ordination and determination of
standards in institutions of higher learning. Hence,
the State Legislature and State Government can
prescribe salaries and allowances payable to Vice
Chancellor of a University governed by the MU
Act and similarly make other provisions like
salaries and allowances payable to other teaching
staff of the Universities in the State of
Maharashtra, but the State legislature or the State
Government as its delegate have no legislative
competence to prescribe the qualifications for
appointment of Vice Chancellor or to prescribe the
method of appointment of Vice Chancellor. Hence
the constitution of the Search Committee by the
Chancellor under Section 12(1) of the MU Act,
1994, is illegal, because it does not include a
nominee of UGC and, therefore, it is not in
conformity with Regulation 7.3.0 of the UGC
Regulations, 2010 framed under the UGC Act,
1956.
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(iii) the provisions of Section 12 and particularly Section
12(1)(a) of the MU Act, 1996 are repugnant to the
provisions of the UGC Act, 1956 and the UGC
Regulations, 2010.
(iv) UGC Regulations, 2010 are made by UGC in exercise of
the powers under Section 26(1)(e) and (g) of the UGC
Act, 1956. Since the UGC Act was enacted by
Parliament in exercise of its law making power under
Article 246 read with Entry 66 in List I of the VII
Schedule, the UGC Regulations, 2010 over-ride the
provisions of Section 12 of the MU Act which is enacted
by the State legislature. Reliance has been placed on the
decisions of the Supreme Court in
(a) Bharati Vidyapeeth (Deemed University)
and others vs State of Maharashtra and
1
another ,
(b) Prof. Yashpal and another vs State of
2
Chattisgarh and others ,
(c) State of Tamilnadu and another vs
Adhiyaman Educational & Research
3
Institute and another ,
1 (2004)11 SCC 755
2 (2005) 5 SCC 420
3 (1995) 4 SCC 104
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8. On the other hand, Mr.Darius Khambata, learned
Advocate-General for the State of Maharashtra and the Chancellor of
Pune University (Governor of Maharashtra) as well as Mr.Girish
Kulkarni, learned Counsel for the Pune University have opposed the
petition and made the following submissions :
(a) When Parliament enacted UGC Act in 1956
its legislative power was traceable to Article 246(1)
read with Entry 66 in List I (Union List) in the VII
Schedule. Hence, UGC (as delegate of Parliament)
has no power to go beyond Entry 66. Section 26 of
the UGC Act also, therefore, did not give the
delegate (UGC) any power wider than the power
which Parliament had under Entry 66 in the Union
List.
(b) Section 26(1) (e) of the UGC Act conferring
power on UGC to make Regulations consistent
with the Act and the Rules made thereunder
confers power to make Regulations “defining the
qualifications that should ordinarily be required of
any person to be appointed to the teaching staff of
the University, having regard to the branch of
education in which he is expected to give
instruction”. It is submitted that Vice Chancellor
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is not a member of the teaching staff of the
University as the Vice Chancellor is not expected
to give instructions. The Vice-Chancellor is the
Administrative Head of the University for day to
day administration and even to make
appointments to the posts of teachers like
Professors, Assistant Professors and Lecturers.
(c) Even otherwise Section 26(1)(e)
provides that the UGC may make Regulations
defining the qualifications that should ordinarily
be required of any person to be appointed to the
teaching staff. The UGC Regulations are,
therefore, recommendation in nature as held by
the Supreme Court in Delhi University v/s. Raj
4
Singh & ors. The State Government order dated
15 February 2011 at Exhibit “F” enumerates those
Regulations which are adopted by the State
Government out of the UGC Regulations, 2010,
since Regulations 7.2.0 and 7.3.0 are not adopted,
non-adoption of a recommendation or directory
provision like Regulation 7.3.0 would not render
the State legislation invalid or unconstitutional.
4 1994 Supp.(3) SCC 516
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(d) Clause (g) of Section 26(1) of the UGC Act conferring
power on UGC to make regulations for “regulating the maintenance
of standards and the co-ordination of work or facilities in
Universities” cannot be treated as conferring power to prescribe the
qualifications for the post of Vice Chancellor or to lay down the
method of appointment of Vice Chancellor. Clause (g) merely
provides for maintenance of standards of work or facilities in
Universities and the co-ordination of work or facilities in the
Universities.
(e) In view of the above constitutional and legislative
scheme, UGC Regulations, 2010 go far beyond the Regulation
making power of UGC and, therefore, Regulation 7.3.0 must be
treated as invalid.
(f) In any view of the matter, even proceeding on the
assumption that Section 26(1)(e) and (g) of the UGC Act confer
power on UGC to make Regulations prescribing the qualifications
and mode of selection and method of appointment of Vice Chancellor
of a University governed by the UGC Act, 1956 and, therefore,
Regulation 7.3.0 of the UGC Regulations, 2010 is valid, even then
such Regulations, being in the nature of subordinate legislation,
cannot over-ride the provisions of Section 12 of the MU Act, 1994
which is a plenary legislation made by the State legislature.
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(g) Relying on the following decisions, it was vehemently
submitted by the learned Advocate General that though a Central
legislation can over-ride a State legislation in a Concurrent List to the
extent of the repugnancy or inconsistency in view of the provisions of
Article 246(3), a subordinate legislation under a Central legislation
cannot over-ride a plenary legislation made by the State Legislature.
(i) Ch. Tika Ramji and others vs the State of Uttar Pradesh
5
and others, (paragraph 41).
(ii) Chief Inspector of Mines and another vs Karam Chand
6
Thapar, etc. (paragraphs 11, 20, 21).
7
(iii) Meghraj Kothari vs Delimitation Commission and others
(paragraphs 14 and 21).
(iv) Indian Express Newspapers (Bombay) Private Ltd and
8
others vs Union of India and others (paragraph 25).
(v) Kerala Samsthana Chethu Thozhilali Union vs State of
9
Kerala and others, ( paragraph 17).
(vi) M/s.New India Sugar Mills Ltd. Vs State of Bihar and
10
others, (paragraphs 16 and 29.)
5
AIR 1956 SC 676
6
AIR 1961 SC 838
7 AIR 1967 SC 669
8 (1985) 1 SCC 641
9 (2006) 4 SCC 327 (Page 337)
10
AIR 1996 Patna 94 (Pages 101, 107)
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Constitutional and Statutory provisions:
9. Art.246. Subject-matter of laws made by Parliament and by the
Legislatures of States.-
(1) Notwithstanding anything in clauses (2) and (3), Parliament
has exclusive power to make laws with respect to any of the
matters enumerated in List I in the Seventh Schedule..
(2) Notwithstanding anything in clause (3), Parliament, and,
subject to clause (1), the Legislature of any State also, have
power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule.
(3) Subject to clauses (1) and (2), the Legislature of any State
has exclusive power to make laws for such State or any part
thereof with respect to any of the matters enumerated in List II
in the Seventh Schedule.
(4) …......
Seventh Schedule-
List- I
Entry 66- Co-ordination and determination of standards in
institutions for higher education or research and scientific and
technical institution.
| Prior to 42nd Amendment | As per 42nd Amendment (w.e.f. 3-<br>1-1977) | |
|---|---|---|
| State List<br>Entry 11 | Education including<br>universities, subject to the<br>provisions of entries<br>63,64,65 and 66 of List I<br>and Entry 26 of List III | Entry 11 is omitted |
| Concurrent List<br>Entry 25 | Vocational and technical<br>training of laour | “25. Education including technical<br>education, medical education and<br>universities, subject to the<br>provisions of entries 63, 64, 65 and<br>66 of List I ; vocational and<br>technical training of labour.” |
| Concurrent List<br>Entry 26 | Legal, medical and other<br>professions | Legal, medical and other professions |
`
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(emphasis supplied)
254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States.-
(1) If any provision of a law made by the
Legislature of a State is repugnant to any provision of
a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in
the Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether
passed before or after the law made by the
Legislature of such State, or, as the case may be, the
existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the
repugnancy, be void.
(2) Where a law made by the Legislature of a State
with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to
the provisions of an earlier law made by Parliament
or an existing law with respect to that matter, then,
the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of
the President and has received his assent, prevail in
that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding to,
amending, varying or repealing the law so made by
the Legislature of the State.
(emphasis supplied)
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10. University Grants Commission Act, 1956
Preamble - An Act to make provision for the co-
ordination and determination of standards in
Universities and for that purpose, to establish a
University Grants Commission.
Sec.12. Functions of the Commission. - It shall be
the general duty of the Commission to take, in
consultation with the Universities or other bodies
concerned, all such steps as it may think fit for the
promotion and co- ordination of University education
and for the determination and maintenance of
standards of teaching, examination and research in
Universities, and for the purpose of performing its
functions under this Act, the Commission may-
(a) inquire into the financial needs of Universities;
(b) & ( c ) ..................
(d) recommend to any University the measures
necessary for the improvement of University
education and advise the University upon the action
to be taken for the purpose of implementing such
recommendation;
(e) to (i) ….................
(j) perform such other functions as may be prescribed
or as may be deemed necessary by the Commission
for advancing the cause of higher education in India
or as may be incidental or conducive to the discharge
of the above functions.
(emphasis supplied)
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14. Consequences of failure of Universities to
comply with recommendations of the
Commission .- If any University ….... fails within a
reasonable time to comply with any recommendation
made by the Commission under section 12 …. or
commits breach ….. of any regulation made under
clause (e) or clause (f) or clause (g) of section 26, the
Commission, after taking into consideration the
cause, if any, shown by the University for such
failure or contravention, may withhold from the
University the grants proposed to be made out of the
Fund of the Commission.
26. Power to make regulations .
(1) The Commission may, by notification in the
Official Gazette make regulations consistent with this
Act and the rules made thereunder,-
(a) to (d).. .
(e) defining the qualifications that should ordinarily
be required of any person to be appointed to the
teaching staff of the University, having regard to the
branch of education in which he is expected to give
instruction;
(f) defining the minimum standards of instruction for
the grant of any degree by any University;
(g) regulating the maintenance of standards and the
co- ordination of work or facilities in Universities.
(h) to (j) ….......
(2) & (3) ….......
11. The composition of the Search Committee as provided in
Section 12(1) of the MU Act, 1994 and the composition of the Search
Committee as provided in Regulation 7.3.0 of UGC Regulations, 2010
is required to be compared and contrasted in juxtaposition with each
other :-
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| Section 12(1) of the MU Act, 1994. | UGC Regulation 7.3.0 | |
|---|---|---|
| (a) There shall be a Committee consisting of the<br>following members to recommend suitable names to<br>the Chancellor for appointment of Vice-Chancellor,<br>namely :- | (ii) The selection of Vice Chancellor should<br>be through proper identification of a Panel of<br>3-5 names by a Search Committee …... The<br>members of the above Search Committee<br>shall be persons of eminence in the sphere of<br>higher education and shall not be connected<br>in any manner with the University concerned<br>or its colleges. ….the following shall be the<br>constitution of the Search Committee. | |
| (i) a member nominated by the Chancellor, who<br>shall be the retired Judge of the Supreme Court or<br>retired Chief Justice of a High Court or an eminent<br>scientist of national repute or a recipient of Padma<br>Award in the field of education; | a) a nominee of the Visitor/Chancellor, who<br>should be the Chairperson of the Committee. | |
| (ii) the Principal Secretary of Higher and Technical<br>Education Department or any officer not below the<br>rank of Principal Secretary to Government<br>nominated by the State Government; | b) a nominee of the Chairman, University<br>Grants Commission. | |
| (iii) the Director or Head of an institution or<br>organisation of national repute, such as, Indian<br>Institute of Technology, Indian Institute of<br>Management, Indian Institute of Science, Indian<br>Space Research Organisation or National Research<br>Laboratory, nominated by the Management Council<br>and the Academic Council, jointly, in the manner<br>specified by the State Government by an order<br>published in the Official Gazette; | c) a nominee of the Syndicate/ Executive<br>Council/ Board of Management of the<br>University. | |
| (b) The member nominated by the Chancellor shall<br>be the Chairman of the Committee; | ||
| (c) The members nominated shall be the persons<br>who are not connected with the university or any<br>college or any recognised institution of the<br>university; | ||
| (3) The Committee shall recommend a panel of not<br>less than five suitable persons for the consideration<br>of the Chancellor for being appointed as the Vice-<br>chancellor. The names so recommended shall be in<br>alphabetical order without any preference being<br>indicated. The report shall be accompanied by a<br>detailed write up on suitability of each person<br>included in the panel. | (iii) The Visitor/ Chancellor shall appoint<br>the Vice Chancellor out of the Panel of<br>names recommended by the Search<br>Committee. |
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12. We have carefully considered the rival submissions, and
given anxious consideration to the issues raised before us.
13. In the first place, we find considerable substance in the
submission made by learned Advocate General for the State
Government that since the Vice Chancellor of a University under the
MU Act is an Administrative Head, next to the Chancellor, he cannot
be considered as a member of teaching staff merely because he is
considered as the Academic Head also. The language of clause (e) of
Section 26(1) itself indicates that a member of teaching staff is one
who is expected to give instructions in a particular branch of
education. Obviously, the Vice Chancellor of a University is not
expected to give instructions in a particular branch of education. It
may be that in his capacity as a Professor, the incumbent of the post of
Vice Chancellor may be expected to give instruction in a particular
branch of education and may be giving instruction, but it is not the
Vice Chancellor as such who is expected to give instructions in a
particular branch of education and, therefore, in his capacity as Vice
Chancellor of the University, he cannot be considered as a member of
teaching staff of the University. Regulation 7.3.0 is, therefore, not
traceable to Clause (e) of Section 26(1) of the UGC Act.
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14. We may also note in this regard that UGC Regulations,
2000, which are repealed by UGC Regulations, 2010 did not deal with
the posts of Pro-Chancellor and Vice Chancellor of a University. In
fact, the preamble to the UGC Regulations, 2010 itself states that
“regulations are issued for minimum qualifications for appointment
and other service conditions of University and College Teachers,
Librarians, Directors of Physical Education and Sports for the
maintenance of standards in higher education and revision of pay
scales”. The same was the preamble for UGC Regulations, 2000,
which are now repealed and which did not deal with the posts of Pro-
Chancellor and Vice-Chancellor.
15. Coming to the question whether Regulations 7.2.0 and
7.3.0 can be considered as falling under clause (g) of Section 26(1), it
is true that clause (g) confers power on UGC to make regulations
“regulating the maintenance of standards and the co-ordination of
work or facilities in Universities”. While the argument of Mr.
Anturkar for the petitioner may have substance in so far as it is
contended that clause (g) of Section 26 (1) of UGC Act is traceable
to entry 66 in List-I which is “Co-ordination and determination of
standards in institutions for higher learning” and, therefore, may take
colour from the words of the said entry, we are of the view that
qualifications and method of appointment of Pro-Chancellor and Vice
Chancellor of the University cannot be treated as satisfying the
“direct impact” test.
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16. In Dr. Preeti Shrivastava and another vs. State of
11
Madhya Pradesh and ors. , the Apex Court has laid down the test to
be applied viz. “direct impact on the standards of education” and
thereafter, the Supreme Court enumerated some of the factors on
which standards of education in an institute or college depend. They
are :
(i) The caliber of the teaching staff;
(ii) A proper syllabus designed to achieve a high level of
education in the given span of time;
(iii) The student-teacher ratio;
(iv) The ratio between the students and the hospital beds
available to each student;
(v) The caliber of the students admitted to the institution;
(iv) Equipment and laboratory facilities, or hospital
facilities for training in the case of medical colleges;
(vii) Adequate accommodation for the college and the
attached hospital; and
(viii) The standard of examinations held including the manner
in which the papers are set and examined and the clinical
performance is judged.
Thus the rules regarding eligibility of students for admission, syllabus,
student-teacher ratio, qualifications for appointment of teachers,
assessment of students, facilities for teaching etc. will have a direct
impact on the standards of education. The list is obviously not
exhaustive, but would not include administrative matters of the
University such as the method of appointment of Vice Chancellor.
The view that we are inclined to take is supported by the
12
decision of the Supreme Court in State of T.N. v. S.V.Bratheep . The
Supreme Court has held that both the entries viz. Entry 66 in List-I
11 (1999) 7 SCC 120
12 (2004) 4 SCC 513
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and Entry 25 in List-III have to be read together. In State of A.P. V/s.
13
K.Purshottam Reddy, the Supreme Court followed the decision of the
Constitution Bench in R.Chitralekha v. State of Mysore, AIR 1964 SC
1823 holding that the State Law providing for such standard having
regard to Entry 66 of List-I would be struck down as unconstitutional
only in the event the same is found so heavy or devasting so as to wipe
out or appreciably abridge the Central field and not otherwise. As per
the law laid down by the Supreme Court both the entries have to be
read together.
Applying the aforesaid test of “direct impact on the
standard of Education” and the principles laid down in the aforesaid
decisions, we are of the view that the qualifications and the method of
appointment for the post of Pro-Chancellor and Vice Chancellor of a
University cannot be considered as having “ direct impact on the
standards of education”.
17. We are, accordingly, of the considered view that
Regulations 7.2.0 and 7.3.0 of UGC Regulations for appointment of
Pro-Chancellor and Vice Chancellor of the University governed by
UGC Act cannot be treated as falling under Clauses (e) and (g) of
Section 26(1) of the UGC Act, 1956.
18. But, now that “Education including ….Universities...”
has been moved from the State list to the concurrent list, it cannot be
said that Regulations 7.2.0 and 7.3.0 go beyond the law making
power of Parliament. Section 12 of the UGC Act, 1956 enlists
various functions of UGC and includes inter alia, the following
13 (2003) 9 SCC 564
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functions to be performed in consultation with the Universities :
“(d) recommend to any University the measures
necessary for the improvement of University education
and advise the University upon the action to be taken
for the purpose of implementing such recommendation.
(e) to (i)........
(j) perform such other functions as may be
prescribed or as may be deemed necessary by the
Commission for advancing the cause of higher
education in India or as may be incidental or conducive
to the discharge of the above functions.
In the first phase it is not shown whether Regulations 7.2.0 and 7.3.0
were made in consultation with the University. Assuming that such
consultation had taken place, Regulations 7.2.0 and 7.3.0 traceable to
the above provisions of Section 12(d) and (j) are only
recommendatory in nature and, therefore, not binding on the State
Government or the Universities. It may be that Section 14 of the UGC
Act may permit the UGC to withhold from the concerned University
grants proposed to be made out of the fund of the UGC after
following principles of natural justice, on account of non-compliance
with any recommendations made by the UGC under Section 12, but
that cannot render Section 12 of the Maharashtra Universities Act,
1994 unconstitutional or invalid.
19. In this connection, we may refer to the principle laid
down by the Supreme Court in Dr. Ram Pal Chaturvedi vs. State of
Erajasthan and ors., 1970 (1) SCC 75, wherein the Supreme Court was
concerned with the question about conflict of the rules made for
recruitment to the post of Professor in a Government College. The
Recruitment Rules made by the Government under the proviso to
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Article 309 of the Constitution provided for qualification which was
different from the qualification stipulated in the University
Ordinance. The appointment in the Government College was
challenged on the ground of non-fulfillment of conditions prescribed
by the University Ordinance. The Supreme Court held that non-
compliance with the provision of the University Ordinance may
invite the consequence of withdrawal of affiliation of that
Government College, but it would not have the consequence of
invalidation of the appointment made in conformity with the
Recruitment Rules framed by the Government for appointment of
teachers in the Government College. The same principle would apply
here and, therefore, non-compliance with the recommendations of the
UGC under Section 12(d) or (j) may result into invocation of Section
14 of the UGC Act. But, that will not render the provisions of Section
12 of the MU Act invalid, as not being in conformity with the UGC
Regulations.
20. We may also note that the only difference between the
composition of the Search Committee under Section 12(1) of the MU
Act and the composition of the Search Committee under UGC
Regulation 7.3.0 (ii) is not materially different, except in one respect,
i.e. while appointment of a nominee of UGC is required by the UGC
Regulations, 2010, the MU Act provides for appointment of the
Principal Secretary of Higher Education Department of the State
Government as one of the three Members of the Search Committee. In
any case, the said Government Officer is not to be appointed as the
Chairman of the Search Committee, because only the Member
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nominated by the Chancellor (a retired Judge of the Supreme Court, or
a retired Chief Justice of a High Court or an eminent scientist of
national repute or a recipient of Padma Award in the filed of
education) alone can be the Chairman of the Search Committee. The
MU Act, therefore, specifies who could be nominated by the
Chancellor as the Chairman of the Committee. As against that, UGC
Regulations, 2010 are silent on the qualification of the Chairperson of
the Search Committee, except stating that he should be a person of
eminence in the sphere of higher education. Similarly, the UGC
Regulations provide for nomination of one Member by
Syndicate/Executive Council/Board of Management of the University.
The MU Act goes much farther and specifies that the nomination to be
made jointly by the Management Council and the Academic Council
shall be from out of Director or Head of an institution or organisation
of national repute, such as, Indian Institute of Technology, Indian
Institute of Management, Indian Institute of Science, Indian Space
Research Organization or National Research Laboratory.
21. Having regard to the aforestated eligibility criteria laid
down in the MU Act and the discussion in the preceding paras we are
of the considered view that Section 12(1) of the MU Act cannot be
considered as violative of the provisions of the UGC Regulation
7.3.0. On the contrary, the MU Act provides for higher bench marks
for the members of the Search Committee to be nominated by the
Chancellor and by the Syndicate/Executive Council/Board of
Management of the University. As against this, no such bench mark is
laid down in the UGC Regulation 7.3.0.
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22. In fact, we may note at this stage that the MU Act, as
originally enacted, provided the following composition of the Search
Committee :
(i) Principal Secretary of Higher and Technical
Education Department;
(ii) a nominee of the UGC;
(iii) One member nominated by Chancellor;
(iv) One member nominated by the management
Council;
(v) One member nominated by the Academic
Council.
Though the Statement of Objects and Reasons of the
Maharashtra Act, of 14 of 2009, by which sub-section (1) of Section
12 was substituted, does not throw any light on why the State
Legislature decided to do away with the nomination by UGC and
reduced the strength of the Committee from 5 to 3, it appears
reasonable that the State Legislature did not favour a large Committee
of 5 members. The presence of the Principal Secretary of Higher and
Technical Education Department would obviously provide the Search
Committee with the inputs about the local needs of the concerned
University. It may also be fair to presume that with the proliferation
of number of the Universities in the country, the UGC may not be in a
position to make nomination of its representative well in time thereby
delaying the process of selection and appointment of Vice-
Chancellors. Vice-Chancellors of 12 Universities in the State of
Maharashtra have been appointed by the Governor of Maharashtra
in the last two years.
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23. Whatever may be the reason for the legislative
amendment to the MU Act in 2009, we find considerable substance in
the submission of the learned Advocate General that the power to
nominate the representative of the Chairman of UGC in the Search
Committee for selection of candidates for appointment to the post of
Vice-Chancellor cannot be considered as a matter falling within “Co-
ordination and determination of standards in institutions for higher
education”. At the most it may be considered as “implementation of
standards in institutions for higher education” and cannot, therefore,
be considered as falling within Entry 66 in List I of the Seventh
Schedule. If the contention of the UGC were to be accepted, the UGC
would be in a position to contend on the basis of the judgment of the
11
Supreme Court in Dr. Preeti Shrivastava's case that UGC would
have the power to insist for nomination of its representative in the
Purchase Committee of a University or a College for procuring
laboratory equipments or hospital facilities for training in case of a
medical college. Such a construction cannot be accepted as Entry 66
in List I only provides for “co-ordination and determination of
standards in the institutions of higher learning” and
NOT “co-ordination, determination and implementation of
standards in institutions of higher education”.
24. In any view of the matter, proceeding on the basis that
Regulation 7.3.0 could be traced to Entry 25 in the Concurrent List ,
the question is whether the said UGC Regulation can be considered
as over-riding Section 12(1) of the MU Act.
11 (1997) 4 SCC 120
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25. In support of his contention that UGC Regulation 7.3.0
overrides Section 12(1) of the MU Act, Mr. Anturkar, learned Counsel
for the petitioner has heavily relied on the proposition (ii) in para 41
of the judgment of the Supreme Court in State of Tamil Nadu and
another Vs. Adhiyaman Educational and Research Institute and
3
others, where the Apex Court arrived at the following conclusions :
“41. (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 any valid compelling
reasons, it must, be given its full effect according to its
plain and express intention.
(ii) To the extent that the State Legislation is in conflict
with the Central legislation though the former is
purported to have been made under Entry 25 of the
Concurrent List but in effect encroaches upon legislation
including subordinate legislation made by the 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.”
[iii] If there is a conflict between the two legislations,
unless the State legislation is saved by the
provisions of the main part of clause [2] of Article 254,
the State legislation being repugnant to the Central
legislation, the same would be inoperative.
3 (1995) 4 SCC 104
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[iv] Whether the State law encroaches upon Entry 66 of
the Union List or is repugnant to the law made by the
Centre under Entry 25 of the Concurrent List, will have
to be determined by the examination of the two laws
and will depend upon the facts of each case.
(emphasis supplied)
26. Per contra, Mr. Darius Khambata, learned Advocate
General has countered the submission that the question arising in
the present PIL did not arise for consideration in Adhiyaman's case
before the Supreme Court.
27. Before proceeding further, it is necessary to refer to
following settled principles, as to when and how a decision should be
relied upon. In Ashwani Kumar Singh and ors. V/s. U.P.Public
12
Service Commission and ors., , the Supreme Court has observed as
under :-
“10. Courts should not place reliance on decisions
without discussing as to how the factual situation
fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts are
not to be read as Euclid's theorems nor as
provisions of the statute. These observations must
be read in the context in which they appear.
Judgments of Courts are no to be construed as
statutes. To interpret words, phrases and provisions
of statute, it may become necessary for Judges to
embark into lengthy discussions, but the discussion
is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments.
They interpret words of statutes; their words are not
to be interpreted as statutes.
12 (2003) 11 SCC 584
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12. Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases. Disposal of cases
by blindly placing reliance on a decision is not
proper.
In the above decision, the Supreme Court followed the following
13
observation of Lord Morris in Herrington v. British Railway Board, :
“There is always peril in treating the words of a
speech or a judgment as though they were words in
a legislative enactment, and it is to be remembered
that judicial utterances are made in the setting of the
facts of a particular case.”
In State of Orissa v. Sudhansu Sekhar Mishra, AIR1968
SC, page 647, the Supreme Court quoted the following principles laid
down by Earl of- Halsbury. LC said in Quinn v. Leathem, 1901 AC
495
“Now before discussing the case of Allen v. Flood,
(1898) AC 1 and what was decided therein, there
are two observations of a general character which I
wish to make, and one is to repeat what I have very
often said before, that every judgment must be read
as applicable to the particular facts proved, or
assumed to be proved, since the generality of the
expressions which may be found there are not
intended to be expositions of the whole law, but
governed and qualified by the particular facts of the
case in which such expressions are to be found.
The other is that a case is only an authority for what
it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow
logically from it. Such a mode of reasoning assumes
that the law is necessarily a logical Code, whereas
every lawyer must acknowledge that the law is not
always logical at all.”
(emphasis supplied)
13 (1972) All ER, 749
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28. In Adhiyaman's case, the only question was about the
conflict between provisions of All India Council for Technical
Education Act, 1987 (AICTE Act) on one hand and Tamil Nadu
Private Colleges (Regulation) Act, 1976 and Rules made thereunder
on the other hand. The question was relating to the power of the
State Government and the University respectively to derecognise
and disaffiliate an engineering college. In para (1) of the judgment in
Adhiyaman's case, the Supreme Court formulated the question thus :
“1. The short question involved in these matters is
whether after the coming into force of the All India
Council for Technical Education Act, 1987 [hereinafter
referred to as the 'Central Act'] the State Government
has power to grant and withdraw permission to start a
technical institution as defined in the Central Act. In
the present case,the technical institutions with which
we are concerned are the respondent Engineering
Colleges which are being run in the State of Tamil
Nadu.”
29. The respondent-college was granted permission by the
State of Tamil Nadu to start a new Engineering College under the
self-financing scheme, subject to certain terms and conditions. The
respondent-college also obtained temporary affiliation from the
University for the academic year 1987-88, subject to fulfilment of
certain conditions. In the year 1988-89, the University extended
affiliation subject to implementation of the recommendations of the
Inspection Commission and subject to the conditions granted at the
time of initial affiliation. The State Government appointed a High
Power Committee to visit the self-financing engineering colleges and
make an assessment of their functioning. In its report, the High
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Power Committee reported that the conditions subject to which the
State Government had granted permission to the respondent-college
were not fulfilled and there was also violation of conditions imposed
by University while granting affiliation. On receipt of the report, the
Director of Technical Education issued a show cause notice to the
respondent-college to show cause why the permission granted by the
Government to run the college should not be withdrawn. In view of
the report of the High Power Committee, the University resolved to
reject the request of the respondent-college for provisional affiliation
for 1989-90 and also cancelled the affiliation granted for the previous
years.
The respondent-college filed Writ Petition before the
Madras High Court for prohibiting the Director of Technical
Education from taking further proceedings in pursuance of the show
cause notice. The respondent-college also filed another Writ Petition
for for quashing the resolution passed by the University and for
direction to the University to grant provisional affiliation to its
college.
The learned single Judge allowed the writ petition filed
against the State Government after holding that passing of the Central
Act the State Government had no power to cancel the permission
granted to the Trust to start the college and it could not rely for the
purpose on a report of the High Power Committee appointed by the
State Government, since the appointment of such a committee was
itself illegal and unconstitutional. According to learned Judge, the
only course open to the State Government was to refer the matter to
the All India Council for Technical Education (AICTE). According to
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learned Judge, under the Central Act the Council was the competent
authority to recognise or de-recognise any technical institution in the
country. The petition against the University was dismissed on the
ground that one of the conditions imposed by the University for grant
of affiliation was that the Trust should obtain concurrence of the
AICTE. Since, such concurrence was not obtained, the University
was justified in taking the impugned action.
In Appeal, the Division Bench of the High Court not
only confirmed the decision of the learned single Judge that the State
Government had no jurisdiction to de-recognise the college but also
held that even the University could not have acted on the report of the
High Power Committee appointed by the State Government and
could not have refused extension of affiliation without giving reasons
for the same.
30. It was in the above factual background that the Supreme
Court again set out the controversy in paragraph 8 of the judgment in
following terms:
“8. It may thus be seen that although on the
facts in the present case, what is questioned is the
power of the State Government and the University
respectively to de-recognise and disaffiliate the
Engineering College, what is involved is the larger
issue as stated at the outset, viz., the conflict
between the Central Act on the one hand and the
Tamil Nadu Private colleges (Regulation) Act, 1976
(for short “the State Act”) and the Rules made
thereunder, viz. The Tamil Nadu Private Colleges
(Regulation) Rules, 1976 and the Madras University
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Aft, 1923 (hereinafter referred to as the “University
Act”) and the statutes and ordinances made
thereunder on the other. We have, therefore, in effect
to address ourselves to this larger issue.”
After discussing the matter in light of the provisions of the
Constitution, the Central Act, (AICTE Act 1987) and the State Act
and the rules made under the State Act, the Supreme Court held that
there was nothing in the judgment of the High Court which was
contrary to or inconsistent with the propositions of law laid down.
31. The Supreme Court held that once an engineering college
was granted recognition under the AICTE Act, 1987 (Central Act), if
the All India Council for Technical Education has not withdrawn
recognition, the State Government and the University cannot
withdraw permission/affiliation. In the case before the Supreme
Court, there was no question of conflict between the regulations
under the AICTE Act, 1987 (Central Act) on one hand and the law
made by the State Legislature on the other hand. However, in the
present case, the question is about the conflict between the provisions
of plenary legislation called MU Act, 1994 enacted by the State
Legislature and the UGC Regulations, 2010 made by UGC, a
delegate of Parliament, under the UGC Act (Central Act).
32. The learned Advocate General contended that apart
from the fact that the above mentioned decision was not directly
concerned with the issue regarding primacy of subordinate legislation
under a Central legislation over a plenary legislation by the State
Legislature, there is a catena of decisions which lay down that the
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subordinate legislation framed under the Act of Parliament cannot
nullify the plenary legislation enacted by a State Legislature.
33. Before referring to the decisions of the Supreme Court, we may
first refer to the judgment of the House of Lords which supports the
submission of the learned Advocate General that wiping out a validly
enacted law has serious consequences and thus, such power needs to
be exercised by Parliament alone and the same cannot be delegated. In
1
R Vs. Secretary of State for Environment and another , the House of
Lords quoted with approval the following principles laid down by
Lord Donaldzon of Lymington MR:
“Subordinate legislation, at any rate when subject to the
negative resolution procedure, represents the will of the
executive exercised within limits fixed by primary
legislation. Whether subject to the negative or
affirmative resolution procedure, it is subject to much
briefer, if any, examination by Parliament and cannot be
amended. The duty of the courts being to give effect to
the will of Parliament, it is, in my judgment, legitimate
to take account of the fact that a delegation to the
executive of power to modify primary legislation must
be an exceptional course and that, if there is any doubt
about the scope of the power conferred upon the
executive or upon whether it has been exercised, it
should be resolved by a restrictive approach. This
principle was endorsed by this House in B-itnell Vs.
Secretary of State for Social Security (1991)2-ALL ER-
726 at 731-732.”
(emphasis supplied)
34. We also find considerable substance in the submission of the
learned Advocate General that the assumption that the publication of
a regulation will have an effect as if the regulation has become a part
1 (2091) 1 All ER 195
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of the Act and lose its character as a subordinate legislation is not
justified. The position appears to be that the rules and regulation will
not lose their character even after publication and they continue to be
subordinate to the primary legislation. Though for interpretation they
may be considered as part of the Act, their character as subordinate
instrument is not lost. In Chief Inspector of Mines and another Vs
2
Karam Chand Thapar :
“11. The whole foundation of the argument is the
assumption that the necessary consequence of S.31(4) of
the 1923 Act is that the regulations, on publication shall
have effect as if enacted in the Act is that the
Regulations became part and parcel of the Act. Is that
assumption justified?
20. The true position appears to be that the Rules and
Regulations do not lose their character as rules and
regulations, even though they are to be of the same
effect as if contained in the Act. They continue to be
rules subordinate to the Act, and though for certain
purposes, including the purpose of construction, they are
to be treated as if contained in the Act, their true nature
as subordinate rule is not lost.”
35. The most important and relevant decision on the subject
matter of the present controversy is the decision of the Constitution
Bench of the Supreme Court in C.H. Tilakramji and others v. State of
3
U.P. , dealt with the petitions under Article 32 of the Constitution
challenging the validity of the U.P. Sugarcane (Regulation of Supply
and Purchase) Act, 1953 and the U.P. Sugarcane Regulation of Supply
and Purchase order and the notification 9-11-1955 issued by the U.P.
Government thereunder. The petitioners were sugarcane growers in
2 AIR 1961 SC 838
3 AIR 1956 SC 676
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different districts of the State of U.P. and the office bearers of the
Co.operative societies. The impugned Order dated 27-9-1954 issued
by the State Government in exercise of the powers under the above
Act ordered that where not less than ¾ of the cane growers of the area
under operation of a Cane Growers Co.operative Society were
members of the society, the occupier of the factory for which the area
is assigned shall not purchase or enter into agreement to purchase
cane grown by a cane grower except through such Cane Growers Co-
operative Society. The notification dated 9-11-1955 under the same
Act reserved or assigned to the sugar factories, the cane purchasing
centres specified against them for the purpose of supply of sugarcane
during the crushing period 1955-56. The writ petitioners, inter alia,
challenged the Act on the ground that it was ultra vires powers of the
State Legislature and also as being repugnant to Industries
(Development and Regulation) Act 1951 and Essential Commodities
Act, 1955. Section 3 of the 1955 Act empowered the Central
Government to provide for regulating or prohibiting the production,
supply and distribution thereof and the trade and commerce therein.
Section 16 of the Act repealed (a) the Essential Commodities
Ordinance, 1955; (b) any other law in force in any State immediately
before the commencement of the Act in so far as such law controlled
or authorised the control of the production etc. and trade and
commence in any essential commodity.
In exercise of the aforesaid power under Section 3 of the
1955 Act, the Central Government promulgated on 27-8-1955 the
Sugarcane Control Order, 1955. Clause 7 of this Central Government
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Order provided that any Orders made by the State Government or
other authority regulating or prohibiting the production etc. of
sugarcane and trade and commerce therein were thereby repealed as
respect to things done or omitted to be done under any such order
before the commencement of the said Central Government order.
36. The Petitioners contended that the impugned State Act of
1953 stood repealed to the extent that it was repealed by Section 16 of
the Essential Commodities Act 1955 and by Clause 7 of the
Sugarcane Control Order 1955 made in exercise of the powers
conferred by Section 3 of the Essential Commodities Act.
The Supreme Court dealt with the said contention in
paragraphs 37 to 41 of its judgment and particularly repelled the
above contention in following words:
“41. There is also a further objection to which cl.7(1)
of the Sugarcane Control Order, 1955 is open. The power
of repeal, if any, was vested in Parliament and Parliament
alone could exercise it by enacting an appropriate
provision in regard thereto. Parliament could not
delegate this power to repeal to any executive authority.
Such delegation, if made, would be void and the Central
Government had no power, therefore, to repeal any order
made by the State Government in exercise of the powers
conferred upon it by S.16 of the impugned Act.
The U.P.Sugarcane Regulation of Supply and
Purchase Order 1954, could not, therefore, be validly
repealed by the Central Government as was purported to
be done by cl.7 of the Sugarcane Control Order, 1955,
and that repeal was of no effect with the result that the
U.P.Sugarcane Regulation of Supply and Purchase Order,
1954 stood unaffected thereby.
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The result, therefore, is that there was no repeal of
the impugned Act or the U.P. Sugarcane Regulation of
Supply and Purchase Order, 1954 by S.16 of Act 10 of
1955 or by Cl.7 of the Sugarcane Control Order, 1955 as
contended by the petitioners.”
(emphasis supplied)
37. If it were to be held that the UGC Regulation in question
overrides the Section 12 of the MU Act enacted by the State
Legislature then, it would be akin to a repeal of a State law. In the
aforesaid Judgment the Supreme Court has laid down that the power
of repeal cannot be delegated to any executive authority.
38. The above legal proposition has been reiterated by the Apex
Court in several judgments. In Indian Express' newspaper (Bombay)
4
Pvt.Ltd and another Vs. Union of India and others , the Apex Court
held as under:
“75. A piece of subordinate legislation does not carry
the same degree of immunity which is enjoyed by a
statute passed by a competent Legislature. Subordinate
legislation may be questioned on any of the grounds on
which plenary legislation is questioned. In addition it
may also be questioned on the ground that it does not
conform to the statute under which it is made. It may
further be questioned on the ground that it is contrary to
some other statute. That is because subordinate
legislation must yield to plenary legislation. It may also
be questioned on the ground that it is unreasonable,
unreasonable not in the sense of not being reasonable,
but in the sense that it is manifestly arbitrary. …..”
4
(1985)1-SCC-641
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The, said decision is followed in J.K.Industries Vs Union of
5
India , where the Apex Court held as under:
“127. … … … as held in Indian
Express Newspapers (Bombay) (P) Ltd. Vs. Union of
India, (1985) 1 SCC 641 at P..689, subordinate
legislation does not carry the same degree of immunity
which is enjoyed by a statute passed by a competent
legislature. Subordinate legislation may be questioned
on any of the grounds on which plenary legislation is
questioned. In addition, it may also be questioned on
the ground that it does not conform to the statute under
which it is made. It may further be questioned on the
ground that it is inconsistent with the provisions of the
Act or that it is contrary to some other statute applicable
on the same subject-matter. Therefore, it has to yield to
plenary legislation. … … ...”
(emphasis supplied in both quotations)
39. The legal position has now been placed beyond any
shadow of doubt in Kerala Samsthana Chethu Thozhilali Union vs
6
State of Kerala and others , where the Apex Court categorically stated
that a subordinate legislation cannot be violative of any plenary
legislation made by State legislature. The Apex Court has held in
emphatic terms as under:
“17. A rule is not only required to be made in
conformity with the provisions of the Act whereunder it
is made, but the same must be in conformity with the
provisions of any other Act, as a subordinate legislation
cannot be violative of any plenary legislation made by
Parliament or the State Legislature.”
(emphasis supplied)
5 (2007) 13 SCC 673
6 (2006) 4 SCC 327
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40. In M/s New India Sugar Mills Ltd. And etc. Vs. State of
7
Bihar and others , the Division Bench of the Patna High Court,
Justice B.P.Singh (as His Lordship then was) held as under:
“34. I have, therefore, no hesitation in coming to the
conclusion that the authorities relied upon by the
petitioners do not support the proposition that a control
order issued by the Central Government in exercise of
its power to make subordinate legislation can alter,
amend or repeal a law enacted by a State legislature. On
the contrary, there is good authority to support the
proposition that alteration, amendment or repeal of such
a State law can only be brought about by legislation
enacted by the Parliament in exercise of its plenary
power of legislation. Even at the cost of repetition I
may refer again to the Constitution Bench decision of
the Supreme Court in Tika Ramji (supra), the relevant
passage wherefrom has been extracted earlier in this
judgment, holding that the power of repeal, if any, under
Art.254(1) was vested in Parliament, and Parliament
alone could exercise it by enacting an appropriate
provision, but could not delegate that power to an
executive authority. It may be that in the case of rules,
regulations etc. which may be “law in force”, an
executive authority if competent to do so may alter,
amend or repeal such rules or regulations. The
observations of the Supreme Court in AIR-1966-SC-604
and (1971)3-SCC-804 also support the above legal
proposition.”
(emphasis supplied)
41. Upon a review of the case law on the subject, we have no
hesitation in accepting the submission made by learned Advocate
General that a subordinate legislation made under a Central Act
cannot override a plenary State legislation on the subject falling in the
Concurrent List and that a plenary legislation made by Parliament
alone can override the plenary legislation made by the State
7 (AIR 1996 Patna 94)
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legislature.
42. Mr.Anturkar, learned counsel for the petitioner relied on
the decision of another Division Bench of this Court in Beena
8
Inamdar Vs. University of Pune and others in support of the
contention that UGC Regulations are binding on the University. The
decision was rendered in the context of appointment to the post of
Principal of a College affiliated to Pune University. The matter was,
therefore, clearly governed by the provisions of Section 26(1)(e) of
the UGC Act. In that case, the Division Bench also held that the
University Ordinance itself provided that no person shall be
appointed to a teaching post in the University or in any college
affiliated to the University if he/she does not fulfill the required
qualifications for the appropriate subject, as prescribed by the
UGC/University from time to time. The Division Bench held that in
absence of specific provision in the Maharashtra Universities Act and
the Statute regarding minimum qualifications to hold the post of
Principal, the University Ordinance would come into play and by
virtue of this Ordinance, the qualifications specified by the UGC
would be deemed to have been incorporated in the University
Ordinance.
In other words, the Division Bench did not have any
occasion to deal with the question about conflict between the
provisions of MU Act and University Ordinance on one hand and
UGC Regulations on the other hand. On the contrary, in that case the
University Ordinance read with the UGC Regulations provided
qualifications for the post of Principal, whereas, the provisions of MU
Act did not contain any such provision.
8 Writ Petition No.6112 of 2010 decided on 8 December, 2011
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43. We may now deal with the submissions made on behalf
of the UGC that it is not open to the State Government to take any
stand contrary to the stand of UGC. Mr. Rodrigues has heavily relied
on the decision in Mahant Dhangir and another v. Madan Mohan and
9
others , in support of the above contention. The contention is that in
this PIL challenging the process of appointment of Vice Chancellor of
Pune University, the State Government as respondent, cannot
challenge the legality of regulation 7.3.0 of the Regulations made by
co-respondent UGC.
44. Having carefully gone through the above decision, we do
not find any substance in the objection raised on behalf of the UGC.
In fact, in Mahant Dhangir's case, the Supreme Court has specifically
held that when the appeal/petition by some of the parties cannot
effectively be disposed of without opening of the matter by the
respondents interse or in the case where the objections are common as
against the appellant and co-respondent, the Court in such cases
would entertain cross-objections against the co-respondent.
45. Mr. Rodrigues also submitted that Regulation 7.3.0 of
UGC Regulations, 2010 has to be treated as valid unless declared void
or illegal in a petition properly constituted wherein the legality and
constitutionality of such regulation is challenged. In the absence of
any such writ petition, the State Government is not entitled to assail
the legality or constitutional validity of Regulation 7.3.0 of UGC
Regulations, 2010. In support of the said contention Mr.Rodrigues
9 1987 (Supp) SCC 528
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heavily relied on the following observations in para 19 of the decision
in Krishnadevi Malchand Kamathia and others v. Bombay
10
Environmental action Group and others , :-
“19. Thus, from the above it emerges that even if the
order/notification is void/voidable, the party aggrieved
by the same cannot decide that the said order/notification
is not binding upon it. It has to approach the court for
seeking such declaration. The order may be
hypothetically a nullity and even if its invalidity is
challenged before the court in a given circumstance, the
court may refuse to quash the same on various grounds
including the standing of the petitioner or on the ground
of delay or on the doctrine of waiver or any other legal
reason. The order ma be void for one purpose or for one
person, it may not be so for another purpose or another
person.”
46. As already held by us, Regulations 7.2.0 and 7.3.0 of
UGC Regulations, 2010 are traceable to section 12(d) of UGC Act,
1956. The same are not without any authority of law but at the same
time, they are merely recommendatary in nature and, therefore,
neither the State Legislature nor the State Government is bound to
accept the same. Accordingly, when the State Government issued
order dated 15 February 2011 at Exhibit `F' enumerated those
regulations which are adopted by the State Government out of UGC
Regulations 2010, the State Government decided not to adopt
Regulations 7.2.0 and 7.3.0. We , therefore, find considerable
substance in the argument of learned Advocate General that non-
adoption of directory Regulation 7.3.0 would not render the State
legislation or the Government order dated 15 February 2011 invalid or
unconstitutional.
10 (2011)3 SCC 363
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47. To sum up-
(i) Regulation 7.3.0 of UGC Regulations, 2010 is not
traceable to clause (e) or clause (g) of Section
26(1) of the University Grants Commission Act,
1956.
(ii) The source of making Regulation 7.3.0 of UGC
Regulations, 2010 is Section 12(d) and (j) of UGC
Act, 1956. However, since section 12(d) and (j)
of UGC Act merely enables UGC to make
recommendations to Universities, Regulation
7.3.0 has to be treated as recommendatory in
nature.
(iii) Regulation 7.3.0 of UGC Regulations, 2010 being
a subordinate legislation under an Act of
Parliament cannot override plenary legislation
enacted by the State Legislature and, therefore,
also Regulation 7.3.0 does not override section 12
of the Maharashtra Universities Act, 1994.
48. In view of the above conclusions, we find no merit in the
petition. The petition is, therefore, dismissed.
CHIEF JUSTICE
N.M. JAMDAR J.
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1. At this stage, the learned counsel for the petitioner prays
for stay of operation of this judgment in order to have further recourse
in accordance with law.
2. The learned counsel for the State Government and the
learned counsel for Pune University oppose the prayer and submit that
the post of Vice Chancellor of Pune University has been lying vacant
for the last about eight months, that the Search Committee constituted
under section 12(1) of the Maharashtra Universities Act, 1994 has
already recommended suitable nominations for the said post and that
the Chancellor is in the process of considering the said
recommendations. The Vice Chanacellor is the administrative head
next to the Chancellor and now the University is required to discharge
very important functions of declaring results of the examinations and
the University will have to take several measures for admitting a large
number of students to several courses in the ensuing academic year
2012-13 which will commence in June 2012.
3. Having heard the learned counsel for the parties, we are
of the view that the real object of a genuine public interest litigation is
to invite the attention of the Court to an alleged illegality in the
appointment to a public office/post or in the process of such
appointment. Since we have held that the respondents have acted in
conformity with the provisions of Section 12 of the Maharashtra
Universities Act, 1994 and that Regulation 7.3.0 of UGC Regulations,
2010 is recommendatary in nature and being in the nature of
subordinate legislation, it does not override the provisions of Section
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12 of the Maharashtra Universities Act, 1994, a plenary legislation
made by the State Legislature, there is no justification to cause any
further delay in appointment to the post of the Vice Chancellor of
Pune University, particularly when the ensuing academic year 2012-
13 is to commence next month.
4. Hence, the prayer for stay is rejected.
CHIEF JUSTICE
N.M. JAMDAR J.
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