Full Judgment Text
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CASE NO.:
Appeal (civil) 7660 of 2002
PETITIONER:
Bharati Vidyapeeth [Deemed University] & Ors.
RESPONDENT:
State of Maharashtra & Anr.
DATE OF JUDGMENT: 26/02/2004
BENCH:
S. RAJENDRA BABU & G.P MATHUR.
JUDGMENT:
J U D G M E N T
[With C.A. Nos. 5543-5544/94]
C.A. No. 7660/2002
Bharati Vidyapeeth, located in Pune, was established
as a society. Several Colleges affiliated to Pune University
were run by the said Society. It applied to the U.G.C. for
treating the society as a deemed university and the State
Government strongly recommended the case of appellants
to the U.O.I. for grant of the status of Deemed University.
The Central Government on advice of U.G.C. declared
various institutions of Bharati Vidyapeeth at Pune as
"Deemed to be University" for the purpose of the U.G.C.
Act vide Notification dated 26.4.1996. On 13.6.1996
U.G.C. issued office memorandum declaring Bharati
Vidyapeeth as a Deemed University in terms of Section 3
of the U.G.C. Act.
When the matter stood thus, it appears that the
Bharati Vidyapeeth as deemed University allowed
admissions to be made in their respective medical,
engineering and dental colleges up to the academic year
1995-1996 under the stream of the Common Entrance
Test conducted by the State authority. Thereafter, they
decided to keep themselves outside the scope of the State
authority. At that stage, appellants herein filed a writ
petition before the High Court challenging the Admission
Rules to Medical, Engineering and Dental colleges for the
year 1996-97 whereby the colleges run by Bharati
Vidyapeeth were included in the admission proposed to be
controlled by the CET authority. The High Court after
considering various arguments of the learned counsel
appearing on either side dismissed the writ petition.
Hence, this appeal by special leave.
This Court granted an interim order on 19.5.1997 to
the following effect which is continuing till today:
".....We are informed that the
examination process has already began
as early as February, 1997. In the larger
public interest, we are of the view that
the petitioner will conduct an All India
Entrance Test and will grant admission
strictly on the basis of the merit of the
candidates. Admission so granted will be
subject to the final orders, that will be
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passed by this Court."
The High Court in reaching the conclusion that the
petitioner (appellant herein) had not made out any case,
mainly adverted to Section 65 of the Maharasthra State
University Act and held that the State can frame rules in
respect of admission of students and the manner in which
the admissions are to be made under those rules has also
been spelt out. Inasmuch as the institution with which we
are concerned did not fall under the Schedule to the
Maharashtra Act, the High Court took the view that the
Rules framed under Section 65 of the Maharasthra Act
would not be attracted. However, the High Court placed
reliance upon Article 162 of the Constitution and held that
the rules, though framed under Section 65 of the
Maharashtra Act could as well be treated as framed in
exercise of powers under Article 162 of the Constitution
and, therefore, stated that such power was available and
hence these Rules could be made applicable to the
appellants’ institutions. The argument addressed on behalf
of the petitioner before the High Court is that once the
appellant institution comes under the umbrella of deemed
university, it is no longer open to the State to exercise any
of its powers under Entry 25 of List III inasmuch as the
same are the powers exercised by the University Grants
Commission under the U.G.C. Act which has been enacted
in terms of Entry 66 of List I of the Constitution. It is in
this background that the matter falls for our consideration.
Shri Harish N. Salve, learned Senior Advocate
appearing for the appellant after developing history of the
law in relation to the Entries in the Constitution and how
they have been understood, specifically submitted that the
institutions in question are governed by the University
Grants Commission Act and the terms under which it had
been granted the status of deemed University as well as
the regulations framed and therefore, it is no longer open
to the State or University to impose Rules upon the
manner in which the admission could be made in the
appellant institution.
It is submitted that once it is held that the power is
available under Entry 66 of List I of the Constitution, the
power stood carved out under Entry 25 of List III of the
Constitution. Thus a State would not have competence at
all to make such an enactment or exercise any power in
relation to those aspects covered under Entry 66 of List I.
He further submitted that the view of the High Court that
the State action fell under Article 162 of the Constitution
in framing the relevant Rules, is plainly impermissible for
the reason that the State lacks legislative competence
over those aspects carved out by Entry 66 of List I. If the
State is not competent to make any legislation in that
regard, it will not have any Executive power to frame any
instruction or exercise any power to frame Rules.
He further drew our attention to various decisions of
this Court as to the scope of Entry 25 of List III and Entry
66 of List I. He submitted that the concept of coordination
and determination of standards of admission in institutions
will cover a situation in which the admission is to be made
in the institutions governed by the UGC Act as well.
While summing up, he stated that the State’s
competence in regard to a deemed university with respect
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to higher education, such as medical, engineering and
dental is completely excluded and a university established
under the Central enactment falls outside the scope of
Entry 25 of List III. He also submitted that the Union law
prevails over the State law to the extent of overlapping.
Therefore, it is contended that the action of the State in
this regard is totally ultra vires the Constitution.
In answer, the learned counsel for the State
submitted that the institutions in the present case prior to
1996 had been part of the Common Entrance Test
conducted by the State authority and admissions were
made on that basis and it will not be correct to state that
the entire process of admission is relatable to and
governed by Entry 66 of List 1 and that there are still
certain facets even in cases of institutions governed by
Entry 66 List 1 to which appropriate legislation can be
made within the scope of Entry 25 of List III. He also
pointed out that the grant of status of deemed university
on the institutions in question is only for purposes of the
UGC Act. Therefore, he argued that the deemed
universities cannot be given any higher status than what
has been considered under the Act. It is only for certain
purposes status has been given. He, therefore, submitted
that though he does not subscribe to the reasoning of the
High Court, he will maintain that the State Government
had sufficient powers to impose necessary rules upon a
deemed University.
In order to appreciate the various contentions put
forth, we have to first examine the scope of Entry 66 of
List I. which reads:-
"Co-ordination and determination of
standards in institutions for higher
education or research and scientific and
technical institutions".
The expression ’coordination’ has been explained by
this Court in more than one decision. Firstly in the
Gujarat University, Ahmedabad Vs. Krishna
Ranganath Mudholkar and Ors., 1963 Supp.(1) SCR
112 and recently in the State of T.N. & Anr. Vs.
Adhiyaman Educations & Research Institute & Ors.,
(1995) 4 SCC 104. In these two decisions it is stated that
the expression ’coordination’ used in Entry 66 of List I 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 will 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.
So far as standard of education is concerned, this
Court in Dr. Preeti Srivastava vs. State of M.P. & Ors.,
1999(7) SCC 120, has explained that the process of
admission falls within the scope of determining standards
and held as follows :-
"It would not be correct to say that the
norms for admission have no connection with
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the standard of education, or that the rules
for admission are covered only by Entry 25 of
List III. Norms of admission can have a
direct impact on the standards of education.
Of course, there can be rules for admission
which are consistent with or do not affect
adversely the standards of education
prescribed by the Union in exercise of powers
under Entry 66 of List I. For example, a
State may, for admission to the postgraduate
medical courses, lay down qualifications in
addition to those prescribed under Entry 66
of List I. This would be consistent with
promoting higher standards for admission to
the higher educational courses. But any
lowering of the norms laid down can and
does have an adverse effect on the standards
of education in the institutes of higher
education."
After specifically adverting to the decisions in State
of M.P. & Anr. Vs. Kumari Nivedita Jain & Ors. (1982)
1 SCR 759 and Ajay Kumar Singh & Ors. Vs. State of
Bihar & Ors., (1994) 4 SCC 401, this Court disagreed
with the proposition that standards come into picture after
admissions are made and held as follows:-
"\005..It is the result of a sum total of all the
inputs - calibre of students, calibre of
teachers, teaching facilities, hospital
facilities, standard of examinations etc. that
will guarantee proper standards at the stage
of exit. We, therefore, disagree with the
reasoning and conclusion in Ajay Kumar
Singh v. State of Bihar, 1994 (4) SCC 401,
and Post Graduate Institute of Medical
Education & Research v. K.L. Narasimhan,
1997 (6) SCC 282."
It was also held that the concept of prescribing
standards would include the process of admission. Hence,
selection and admission cannot be compartmentalized but
it is one single process.
The High Court has also adverted to the decisions in
Kumari Nivedita Jain’s case (Supra) and Ajay Kumar
Singh’s case (Supra) which stood overruled in Preeti
Srivastava’s case (Supra) to state that admission is one of
the areas which will come after selections are made and,
therefore, in that area the Government can play certain
role and in this context in the absence of appropriate
rules, rules will have to be framed and such rules have
been framed by the Government, such rules have been
framed though purporting to be under Section 65 of the
Mahrasthra Act, would be applicable to institutions of the
appellant.
It is now settled position in law that within the
concepts of coordination and determination of standards
in institutions for higher education or research and
scientific and technical institutions, the entire gamut of
admission will fall. Therefore if any aspect of admission of
students in colleges would fall within Entry 66 and it
necessarily stands excluded as has been held in the
Gujarat University’s case (Supra). After examining the
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power of the State to prescribe medium of instruction in
institutions for higher education it is stated in that decision
as follows:
" Item 25 of the Concurrent List confers
power upon the Union Parliament and
the State Legislatures to enact
legislation with respect to "vocational
and technical training of labour". It is
manifest that the extensive power
vested in the Provincial Legislature to
legislate with respect to higher,
scientific and technical education and
vocational and technical training of
labour, under the Government of India
Act is under the Constitution controlled
by the five items in List I and List III
mentioned in item 11 of List II. Item 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".
If the power to legislate in regard to those aspects
are entirely carved out of the subject of education and
vested in Parliament even at a time when ’Education’ fell
under List II, we find no reason now not to accept the
arguments advanced on behalf of the appellant that once
an institution comes within the scope of Entry 66 of List I,
it falls outside the control of the provisions of Entry 25 of
List III.
Under Section 3 of the Act, deemed University status
will be given to those institutions that for historical
reasons or for any other circumstances are not Universities
and yet are doing work of a high standard in specialised
academic field compared to a University and that granting
of a University status would enable them to further
contribute to the course of higher education which would
mutually enrich the institution and the University system.
Guidelines for considering proposals for declaring an
institution as deemed to be University were also issued by
the UGC. Under the said guidelines aspects relating to
admission was specifically entrusted with the UGC and
admission could be made only through a common
entrance test on All-India basis. Such an exercise was
intended to maintain a uniform standard and level of
excellence. As we have pointed out, admission plays a
crucial role in maintaining of the high quality of education.
And for the proper maintenance of academic excellence,
as intended by the UGC Act, admissions to deemed
University has to be made under the control of UGC. This
further goes to show that admission procedure to a
deemed to be University is fully occupied by Entry 66 of
List I and the State cannot exercise any powers over
admission procedure.
Therefore, the State could not have enacted any
legislation in that regard. If that is so, neither in exercise
of executive power under Article 162 of the Constitution
which extends only to the extent of legislative power nor
in respect of power arising under the Maharashtra State
Universities Act, such rules could have been prescribed.
To the extent the High Court holds to the contrary, we set
aside the order of the High Court.
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At this stage we must strike a note of caution in
regard to institutions which are exclusively owned by the
Government and in respect of institutions which stand
affiliated to the University or in respect of institutions to
which either affiliation or grant is made. Such institutions
may be controlled to an extent by the State in regard to
admission as a condition of affiliation or grant or owner of
the institutions. But those conditions, again if they are in
respect of the institutions of higher education must apply
the standard prescribed by the statutory authorities such
as U.G.C., Medical Council, Dental Council, AICTE,
governed by Entry 66 of List I of the Constitution.
Though arguments have been advanced before us
that even if some area is covered under Entry 25 in
relation to admission, inasmuch as the power has been
exercised under Entry 66 which in pith and substance falls
within that scope the State legislation to that extent has to
yield to Central legislation. In this case it is unnecessary
to examine this aspect of the matter as the institution in
question entirely falls within the scope of the U.G.C. Act.
UGC has prescribed the norms of admission also which
include Fees that can be collected from students and
specifically debar collection of Capitation fee. The
university or the State Government has no role to play
either in the matter of recognition, affiliation or making
any financial grants to exercise powers either as condition
thereto or in exercise of Entry 25 of List II.
However, we may advert to the various provisions of
the U.G.C. Act. The Act provides for various aspects which
would be looked after. Section 12 relates to Powers and
Functions of the University Grants Commission under
which 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 the Act. It
may have other powers, including power to establish, in
accordance with the regulations made under the Act,
institutions for providing common facilities, services and
programmes for a group of universities or for the
universities in general and maintain such institutions or
provide for their maintenance by allocating and disbursing
out of the Fund of the Commission such grants as the
Commission may deem necessary.
The Commission is also authorised to frame
regulations under Section 26 of the UGC Act. Section
26(1)(f) in particular defines the minimum standards of
instruction for the grant of any degree by any university
and regulating the maintenance of standards and the co-
ordination of work or facilities in universities and to
regulate the establishment of institutions referred to in
clause (ccc) of Section 12 and other matters relating to
such institutions. It also provides for fees to be charged
and scales of fees in accordance with which fees may be
charged. It is also empowered under Section 25 to frame
rules for carrying out the purposes of the Act in general
and in particular any function that may be performed
under Section 12 and additional functions which may be
performed by the Commission under clause (j) of the Act.
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Learned counsel appearing for the State very
strenuously urged that the U.G.C. Act is only for the
purpose of making grants to various institutions governed
by and it was not an authority which would create a
university and give a special status to it so as to keep it
out of the control of the University or the State where it is
located. This argument ignores the provisions of the
enactment and particularly those to which we have
adverted to just now, for such institutions are recognised
or granted deemed status for the maintenance of the
standards in the institutions and for coordinating the
teaching in universities which is a higher purpose than
merely giving grants and with that object, the enactment
is made. We do not think it could be confined only to
making of grants as has been contended by the
respondents. This argument, therefore, needs to be
rejected.
Shri Lalit learned counsel for the State drew our
attention to the two decisions of this Court in T.M.A.Pai
Foundation & Ors. Vs. State of Karnataka & Ors.,
(2002) 8 SCC 481 and Islamic Academy of Education &
Anr. Vs. State of Karnataka & Ors., (2003) 6 SCC 697
to contend that in these two decisions certain norms have
been laid down in regard to admissions and those norms
are applicable even in respect of deemed universities. The
observations made in those decisions are only in the
context in which the decisions were rendered. There was
no argument or consideration of the competing
enactments whether as to which authority is empowered
to make admissions or in what manner. All that was
stated was the nature of control that a State can exercise
in respect to educational institutions which impart different
kind of education and no more. Therefore, the
observations made therein can have no relevance or
application.
He further highlighted that these institutions
originally started in the State of Maharashtra to cater to
the local needs and therefore now if it is being given
deemed status it will no longer serve the local needs, such
need having been recognized by the Government by
granting essentiality certificate. It would not be
appropriate for the State to contend that even though the
institution has now attained the deemed university status
it is not beyond the clutches of the State in the matter of
admissions of the students to such colleges as before
granting of the deemed university status, the State was
indeed consulted and the State conveyed its strong
recommendation for grant of such status. Particularly
when such status has been granted after consulting the
Government concerned, we do not think that such
argument on the basis of local needs should be accepted.
Faced with this position, Learned counsel, of course,
stated that the problem posed by him may have to be
attended to by the concerned authority.
We, accordingly, allow this appeal, set aside the
order made by the High Court and allow the writ petition
filed by the appellants to the extent of restraining the
respondents to enforce their instructions for bringing the
institutions of the appellants within the stream of the
Common Entrance Test Examination.
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C.A.Nos. 5543-5544/1994
These appeals arise out of an order made by the High
Court in two writ petitions filed before it by respondent
No.1. The appellant enacted the Karnataka Educational
Institutions (Prohibition of Capitation Fee) Act, 1984 and
issued a notification on 16.9.1993 by which the Rule for
selection of candidates for admission to Engineering,
Medical, Dental, Pharmacy and Nursing Courses were
amended and thereby the institutions of respondent No.1
were specifically brought within scope of the said
enactment. That action of State was challenged in the
aforesaid writ petitions. On the arguments raised before
the Court, the High Court formulated two questions as
follows:
(1) Whether the State has legislative competence to
extend the provisions of the act to the petitioner
Institution(which is deemed to be an University for the
purposes of the "University Grants Commission Act, 1956)
by the impugned notification issued under Section 2(c) of
the Act? And
(ii) Whether the said notification is ultravires of
Section 2(c) of the Act itself?
On the first question, the High Court examined
various provisions of the enactment such as the University
Grants Commission Act, 1956 (referred to as the "U.G.C.
Act") and the State Act which was under challenge before
it bearing in mind the scope of Entry 66 of List I and Entry
25 of List III of the Seventh Schedule to the Constitution.
Thereafter, adverting to various decisions of this Court, it
concluded that since specified guidelines and provisions
pertaining to all relevant aspects for the purpose of
performing different functions, including fixation of the
scale of fee, and other matters are provided under the
UGC Act, it is difficult to hold that the Act under challenge
and the Rules framed thereunder can be made applicable
to the petitioner(respondent No. 1 herein).
Thereafter, the High Court adverted to the decisions
of this Court in Kumari Nivedita Jain’s case and Ajay
Kumar Singh’s case. The High Court held that the said
decisions were not attracted to the instant case wherein
the question for consideration is concerning a Deemed
University declared as such by the Central Government to
be regulated under the provisions of the UGC Act; that the
Regulations and guidelines subject to which the Deemed
University status is granted to the petitioner(respondent
No. 1 herein) would, therefore, cover all the relevant
functions to be performed by the Deemed University,
including the matters which are now sought to be
regulated by the State under the Act and the Rules by
including the Deemed University within the definition of
the term "Educational Institutions".
The view taken by the High Court is also consistent
with the view expressed by this Court in Dr. Preeti
Srivastava’s case (supra) and by us in C.A.No.
7660/2002 - Bharati Vidyapeeth (Deemed University) &
Ors. Vs. State of Mahrashtra & Anr. and, therefore, all the
arguments addressed by Shri Sanjay R. Hegde to the
contrary stand rejected.
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Therefore, we find no merit in these appeals and are
dismissed.