IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16015, 16297, 16298, 16299, 16300, 16301, 16503, 16665, 16910, 17062, 17971, 19624 and 21145 of 2010, 4856, 5190 and 6183 of 2011 and M.P.No.1,1,2,1,2,1,2,1,2,1,2,1,1,2,1,1,1,1,1 and 2 of 2010, 1,21,2,1 and 2 of 2011 SRM University, (Deemed University under Sec.3 of the UGC Act), rep by its Registrar, SRM Nagar, Kattankulathur-603 203 Kancheepuram District, Tamilnadu. .. Petitioner in W.P.No.16015 of 2010 1. Hindustan University, rep by its Registrar, 40, GST Road, ST. Thomas Mount, Chennai-600 016. 2. Anand Jacob Verghese Vide President of Hindustan Institute of Technology & Science, 40, GST Road, ST. Thomas Mount, Chennai-600 016. .. Petitioners in W.P.No.16297 of 2010 1. B.S.Abdur Rahman University (A Deemed to be University), rep by its Registrar, Dr.V.M.Periasamy, Seethakathi Estate, GST Road, Vandalur, Chennai-600 048. 2. Abdul Qadir A.Rahman Buhari, Secretary, B.S.Abdur Rahman Institute of Science of Technology Society, Seethakathi Estate, GST Road, Vandalur, Chennai-600 048. .. Petitioners in W.P.No.16298 of 2010 1. Sathyabama University, rep by its Registrar Dr.S.S.Rau Jeppiaar Nagar, Rajeev Gandhi Road, Chennai-600 119. https://hcservices.ecourts.gov.in/hcservices/ 2. Dr.J.Jeppiaar, Managing Trustee, Sathyabama Institute of Science & Technology, Jeppiaar Nagar, Rajeev Gandhi Road, Chennai-600 119. .. Petitioners in W.P.No.16299 of 2010 1. St.Peters University, rep by its Registrar, Dr.M.Shanmugam, Avadi, Chennai-600 054 Tamil Nadu 2. Dr.T.Banumathi, Managing Trustee, St. Peter's Institute of Higher Education and Research, Avadi, Chennai-600 054 Tamil Nadu. .. Petitioners in W.P.No.16300 of 2010 1. V.R.Venkataachalam, Managing Trustee, Sri Ramachandra Educational & Health Trust, No.25, Sir CV Raman Road, Chennai-600 018. 2. Sri Ramachandra University (declared u/s 3 of the UGC Act, 1956) rep by its Registrar, No.1,Sri Ramachandra Nagar, Porur, Chennai-600 116. .. Petitioners in W.P.No.16301 of 2010 Tamilnadu Deemed Universities Association, An Association registered under the Societies Registration Act, 1975 (Sl.No.11/2010) rep by its President, Dr.N.M.Veeriayan, having office at No.25,Mahalinga Street, Mahalingapuram, Chennai-600 034. .. Petitioner in W.P.No.16503 of 2010 1. Kalasalingam University, rep by its Registrar, Dr.T.Vasudevan, Anand Nagar, Krishnan Koil-626 190 Virudhunagar District, Tamilnadu. https://hcservices.ecourts.gov.in/hcservices/ 2. K.Sridharan, Trustee, Kalasalingam Academy of Research and Education, Old No.14, New No.52, Sriman Srinivasa Road Alwarpet, Chennai-600 018. .. Petitioners in W.P.No.16665 of 2010 Meenakshi Academy of Higher Education and Research (Deemed University) rep by its Registrar, Mr.A.N.Santhanam, No.12,Vembuli Amman Koil Street, West K.K.Nagar, Chennai-600 078. .. Petitioner in W.P.No.16910 of 2010 Shanmugha Arts & Science, Technology & Research Academy (SASTRA University), A University under Sec.3 of the UGC Act, having its head quarters at No.5,Subbarayan Nagar Main Road, Kodambakkam, Chennai-24 rep by its Registrar Dr.S.N.Srinivasa .. Petitioner in W.P.No.17062 of 2010 1. Vinayaka Mission's University, rep by its Registrar Sankari Main Road, N.H.47, Ariyanoor, Salem-636 308. 2. A.Shanmuga Sundaram, Managing Trustee, Vinayaka Mission's Research Foundation Trust Sankari Main Road, N.H.47, Ariyanoor, Salem-636 308. .. Petitioners in W.P.No.17971 of 2010 1. Bharat University rep by its Registrar, No.173,Agaram Road, Selaiyur, Chennai-600 073. 2. J.Sandeep Anand, President, Bharat Institute of Higher Education and Research, A society registered under the Societies Registration Act, 1975 (Sl.No.36 of 1995) No.29, Tilak Street, T.Nagar, Chennai-600 017. ..Petitioners in W.P.No.19624/ 2010 https://hcservices.ecourts.gov.in/hcservices/ 1. Dr.N.M.Veeraiyan Managing Trustee, Saveetha Institute of Medical and Technical Sciences (SIMATS) No.162,Poonamallee High Road, Velappanchavadi, Chennai-600 077. 2. Saveetha University, (Declared u/s 3 of the UGC Act, 1956) represented by its Registrar, No.162,Poonamallee High Road, Velappanchavadi, Chennai-600 077. .. Petitioners in W.P.No.21145 of 2010 VIT University, rep by its Registrar, Mr.T.S.Thiagarajan, Gayathri Apartments, No.2,First West Cross Street, Gandhi Nagar West, Vellore-632 006 .. Petitioner in W.P.No.4856 of 2011 Vel Tech Rangarajan Dr.Sagunthala R&D Institute of Science & Technology, (Deemed to be University) rep by its Registrar, Mr.E.Kannan, 42,Vel Tech – AVadi Road, Avadi, Chennai-600 062. .. Petitioner in W.P.No.5190 of 2011 Vels University, rep by its Registrar Dr.P.Govindrajan Vels Institute of Science and Technology & Advanced Studies (VISTAS) Velan Nagar, P.V.Vaithyalingam Road, Pallavaram, Chennai-600 117. .. Petitioner in W.P.No.6183 of 2011 Vs. 1. The Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002. .. 1st respondent in W.P.Nos.16015, 16297, 16298, 16299, 16300, 16301, 16503, 16665, 16910,17971 of 2010 and 6183 of 2011 https://hcservices.ecourts.gov.in/hcservices/ 2nd respondent in W.P.No.19624 of 2010 Respondent in W.P.No.21145 of 2010 2. The Joint Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002. .. 2nd respondent in W.P.No.16015 of 2010 3. Government of India, Ministry of Human Resource Development, Department of Higher Education, 128 'C' Wing, Shastri Bhavan, New Delhi-110 115. (impleaded suo moto as per order dt.4.8.2010) .. 3rd respondent in W.P.No.16015 of 2010 2nd respondent in W.P.Nos.16297, 16298, 16299,16300,16301,16503, 16665, 16910,17062, 17971, of 2010 Union of India, rep by its Secretary, Department of Human Resources Development, Shastri Bhavan, New Delhi. .. 1st respondent in W.P.Nos.4856, 5190 and 6183 of 2011 University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002. rep by its Chairman. .. 1st respondent in W.P.No17062 of 2010 and 2nd respondent in W.P.Nos.4856 and 5190 of 2011 W.P.Nos.16015 and 16297 of 2010 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring the provisions of the UGC (Institutions Deemed to be Universities) Regulations, 2010 as ultra vires the UGC Act, 1956 and Article 14 of the Constitution of India and consequently declare the same to be inapplicable to the petitioners university. W.P.Nos.16298, 16299, 16300,16301, 16503, 16665, 16910, 17971, 19624 and 21145 of 2010 and 4856, 5190 and 6183 of 2011 are preferred under Article 226 of the Constitution of India praying https://hcservices.ecourts.gov.in/hcservices/ for the issue of a writ of declaration declaring the provisions of the UGC (Institutions Deemed to be Universities) Regulations, 2010 to be unconstitutional and ultra vires the UGC Act and consequently declare the same to be inapplicable to the petitioners universities and the members of the petitioner Association. W.P.No.17062 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring the provisions of the UGC (Institutions Deemed to be Universities) Regulations, 2010 dated 21.5.2010 issued by the respondent as ultravires of the provisions of the UGC Act, 1956, unconstitutional thus void and inoperative. For Petitioners : Mr.V.T.Gopalan, SC for Ms.B.Saraswathi in W.P.No.16015 of 2010 Mr.N.R.Chandran, SC for Mr.R.Natarajan in W.Ps.16297, 16665 of 2010, 4856, 5190 and 6183 of 2011 and for Mr.C.V.Subramanian in W.P.No.17971 of 2010 Mr.R.Krishnamurthy, SC for Mr.R.Natarajan in W.Ps.16298, 16299 of 2010 Mr.R.Muthukumarasamy, SC for Mr.R.Natarajan in W.P.16300 of 2010 & for Mr.A.Jenasenan in W.P.16301 of 2010 Mr.Vijay Narayan, SC for Mr.C.V.Subramanian in W.Ps.16503, 19624 of 2010 Mr.G.Masilamani, SC for Mr.T.Meikandan in W.P.16910 of 2010 Mr.G.Rajagopal, SC for M/s.G.R.Associates in W.P.17062 of 2010 Mr.D.Krishnakumar in W.P.No.21145 of 2010 For Respondents : Mr.R.Thiagarajan, SC for Mr.P.R.Gopinathan for RR1 and 2 in W.P.No16015 of 2010 for R-1 in W.P.Nos.16297, 16298,16299 , 16300,16301, 16503, 16665, 16910, 17062,17971, of 2010 for R-2 in W.P.No.19624 of 2010 Mr.M.Ravindran, Addl. Solicitor General for Mr.A.S.Vijayaraghavan, SCGSC for R-3 in W.P.No.16015 of 2010 for R-2 in W.P.Nos.16297,16298,16299, 16300, 16301, 16503, 16665, 16910, 17062, 17971 of 2010, 4856, 5190 and 6183 of 2011 https://hcservices.ecourts.gov.in/hcservices/ for R-1 in W.P.No.19624 of 2010 for Mr.P.R.Gopinath for R-1 in W.P.21145/2010, and W.P.Nos.4856, 5190 and 6183 of 2011 COMMON ORDER The short question that arises for consideration is that if the impugned regulations framed by the University Grants Commission (for short UGC) are given effect to, will the future of these deemed universities be doomed? 2.When the writ petition in W.P.No.21145 of 2010 came up before this Court, it was informed by both sides that this matter will have to be heard along with all connected matters. Accordingly, with the consent of both sides, all connected matters were listed and were heard at length. In view of the commonality of the issues raised, all the writ petitions are disposed of by a common order. 2A.These matters were admitted on various dates. In the application for interim relief, the statement made by the counsel for UGC that until the disposal of the writ petitions the impugned regulations will not be implemented was recorded. In some cases, the Government of India, MHRD was not made as party. It was subsequently impleaded as a party respondent. Two common counter affidavits were filed by the MHRD and UGC. 3.In all these writ petitions, the petitioners are either the Trusts which established the deemed universities under Section 3 of the University Grants Commission Act, 1956 or the deemed Universities themselves or the Trustees of the trusts which had established those Deemed Universities. One writ petition was filed by an Association comprising of the deemed universities in the State of Tamil Nadu. The UGC had framed regulations known as the UGC (Institutions Deemed to be Universities) Regulations, 2010, dated 21.5.2010. The regulations were ordered to come into effect from the date of publication in the Gazette of India. Accordingly, these regulations were published on 26.5.2010 in issue No.146 in the Extraordinary Gazette of India to Part III Section 4. The regulations were made for the purpose which is set out in the preamble to the Regulations, which reads as follows: To regulate, in an orderly manner, the process of declaration of institutions as deemed to be universities; preventing institutions of dubious quality from being so declared; and, further to maintain quality of higher education imparted by institutions deemed to be universities consistent with the ideals of the concept of a university; the University Grants Commission, in exercise of powers conferred under clauses [f] & [g] of sub-section [I] of https://hcservices.ecourts.gov.in/hcservices/ Section 26 of the University Grants Commission Act, 1956, hereby, makes the following Regulations namely: 4.Pursuant to the publication in the Gazette, the UGC had sent a communication in June, 2010 to all the petitioners Universities bringing their attention to the regulations and it directed them to make necessary changes in the existing Memorandum of Association / Rules of the Deemed to be Universities and to forward a copy of the registered Memorandum of Association / Rules to the UGC. The preamble portion of the letter reads as follows : "As you are aware, the University Grants Commission has been entrusted with responsibility of the coordination and maintenance of the standards of higher education in the country. In order to maintain quality of higher education and research imparted by institutions deemed to be universities consistent with the ideals of the concept of a university, the University Grants Commission has finalized the UGC (Institutions Deemed to be Universities) Regulations, 2010 as approved by the Government of India, Ministry of Human Resource Development vide letter No.F.13-22/2008-U.3(A) dated 19th April, 2010 and approved by the Commission in its meeting dated 4th May, 2010. A copy of the Regulations dated 26th May, 2010, as published in the Extraordinary Gazette of India is enclosed for your information and necessary action." (Emphasis added) 5.In all these writ petitions, the petitioners were aggrieved by the following regulations : 5.2 Among the authorities of the deemed to be universities, there shall be a Chancellor who shall be appointed by the sponsoring Society or the sponsoring Trust. He /she shall be an eminent educationist or a distinguished public figure other than the President of the sponsoring Society or his/ her close relatives. 5.3 There shall be no position of Pro-Chancellor(s). 5.7 There shall be a Board of Management consisting of the following: - i) Vice-Chancellor.........Chairperson ii) Pro Vice-Chancellor (wherever applicable) iii) Deans of Faculties not exceeding two (by rotation based on seniority). iv) Three eminent academics as nominated by the Chancellor v) One eminent academic to be nominated by the Central Government in consultation with UGC vi)Two teachers (from Professors, Associate Professors) by rotation based on seniority vii)One nominee of the sponsoring Society viii)The Registrar, who shall be the Secretary https://hcservices.ecourts.gov.in/hcservices/ The term of membership of the Board of Management and its powers are as shown in Annexure I. 6.1 Admission of students to all deemed to be universities, public or private, shall be made strictly on merit based on an All India examination as prescribed by the Regulations and in consistence with the national po1ic.y in this behalf, from time to time. 6.4 The fee structure for various programmes of study in the deemed to be universities shall also be fixed in accordance with the Fee Regulations framed by the Government or by the Commission in this behalf from time to time. 12.02 If an institution deemed to be university wishes to start a new Department dealing with a subject which is not in the field of its specialization or in an allied field, it may do so only if that field is covered under the objectives for which the institution deemed to be university was established, and with the prior approval of the Commission. 20.0 USE OF THEWORD 'UNIVERSITY' An Institution deemed to be University shall not use the word 'University' suffixed to its name but may mention the words "deemed to be university" within parenthesis suffixed thereto." 6.In W.P.Nos.16503, 16910, 17971 and 19624 of 2010, in addition to the challenge made to the above regulations, Regulations 18 and 23 were also challenged. In W.P.No.5190 and 6183 of 2011, in addition to the challenge to the earlier regulations, Regulation 22.2 is also under challenge. Since these regulations are also challenged, it is necessary to extract these regulations (herein referred to as impugned regulations), which read as follows: 18.0 DISTANCE EDUCATION No institution deemed to be university, so declared by the Central Government subsequent to these Regulations, shall be alIowed to conduct courses in the Distance mode. Also, such institutions declared as such, prior to these Regulations, shall not be allowed to conduct courses in the Distance mode from any of its off-Campus Centre / off-shore Campus approved subsequent to these Regulations. 22.2 After conducting an inspection of the institution deemed to be university by the Commission on its own or on the basis of any other authentic information or report received from any other reliable source(s) and after considering the ' Commission is satisfied that the institution deemed https://hcservices.ecourts.gov.in/hcservices/ to be university explanation submitted by the institution deemed to be university, if the has violated any of the provisions of these Regulations or any directives issued by the Commission, the Commission may direct the concerned institution deemed to be university not to admit new students for the period to be decided by the Commission and in case of deliberate continuous violation of these Regulations, may advise the Central Government for withdrawal of the declaration notifying the institution as an institution deemed to be university. In the event of such withdrawal of the declaration, the entire movable and immovable properties of the institution deemed to be university shall stand forfeited to the Commission. For first violation, the withdrawal may be restricted to one academic session which can be extended up to five academic sessions for repeated violations. However, for serious and deliberate violation, the status of deemed to be university shall be withdrawn permanently. 23.0 CONSIDERATION OF OLD PROPOSALS All proposals (whether seeking declaration as an institution deemed to be university or seeking approval for establishing off-Campus Centres / off- shore Campus(es) or inclusion of off-Campus Centres in the ambit of the institution deemed to be university), which are either pending / in process in the Commission or have been received by the Central Government, shall be governed by these Regulations. 7.It was contended that the provisions of the UGC Act are applicable to all the statutory universities as well as deemed to be universities without any distinction. Under section 25 of the UGC Act, the Central Government can frame rules. The Central Government in exercise of its power under Section 25(1), can only frame rules for the purpose of prescribing initial norms and standards to declare an institution for higher education as deemed to be university. Once such declaration was made, there is no provision or warrant to make further declaration in the matter of applicability of provisions of the UGC Act and Rules. This aspect was not taken note of while framing the impugned regulations. Under Section 26 of the UGC Act, the UGC has been given only power to make regulations in restricted areas. It is only under Section 25 (1), the Central Government is vested with power to make rules to carry out for the purpose of the Act. When once an University under Section 2(f) as well as an institution deemed to be university (IDU) is recognised under Section 3, different yardsticks cannot be made between the two types of universities. 8.A subordinate legislation cannot exceed the limit of the authority conferred by the enabling Act and that it is ultravires https://hcservices.ecourts.gov.in/hcservices/ of the Act. Imparting education is a State function. But, having regard to its financial constrain, the function of imparting education has been given to private educational institutions and such institutions supplement the function of the State. Though not to an independent activity, they are closely allied and supplemental to the activity of the State. Therefore, while framing rules or regulations concerning the IDUs, they should not put fetters upon the private bodies or trusts running IDUs. It would virtually tantamount to crippling the control of such IDUs. If an institution is already recognised under Section 3, no further restriction can be put so as to discriminate between regular universities and the IDUs. After the grant of recognition under Section 3, the UGC Act do not authorise any further discrimination or distinction to be made between the universities and IDUs. The impugned regulation 1.2 though states that it applies to every institution seeking declaration as deemed to be university under the Act and also albeit prospectively to an institution which has been declared as an IDU under Section 3. Therefore, it has been really made only prospectively, but applying the same to the existing IDUs cannot be sustained in law. These regulations cannot be applied to the existing universities which are granted recognition under Section 3. 9.Regulations 5.2, 5.3 and 5.7 are ultra vires of the UGC Act and are arbitrary, violative of Article 14 of the Constitution. While no exception can be taken to the requirement that a person who is appointed as a Chancellor of the IDU must be an eminent educationist or a distinguished public figure, but excluding holders of the office who are close relatives of the President is highly arbitrary. The Trust which runs the management of the University is not receiving any aid. Hence there is no question of any public money involved and it will be too hard for the private trust to run the university by having a stranger as its Chancellor. The trust will not have any confidence in such a person. Similarly, the abolition of Pro-Chancellor under Regulation 5.3 is also unjustified. All the statutory universities in the State are having Education Minister of the State as the Pro-Chancellor and the head of the State as the Chancellor. Most of times, neither the Governor nor the Minister holding the Portfolio of Education are eminent educationists. Therefore, a different yardstick cannot be applied to the IDUs. 10.In the composition of the Board of Management, granting only two members is virtually crippling the trust or the society from the control over the trust. The object behind such curtailment does not advance the object of the Act. The private trust which established IDUs invested all its finance without getting any aid from any source cannot be sidelined and they should not reduce the minority representation in the management. This exercise cannot improve the standard of higher education. In regulations 7.5.5. and 22.2, in the event of withdrawal of status of deemed universities, the corpus of the universities will stand forfeited to the UGC to meet its liability if any is clearly ultra vires of the provisions of the Act. Regulation 23 curtailing the IDUs from using the word https://hcservices.ecourts.gov.in/hcservices/ University as it is suffixed is also arbitrary, because for all practical purposes, an IDU is also an University covered by the other provisions of the UGC Act. 11.In support of these propositions, it was contended by Mr.R.Krishnamurthy, learned Senior Counsel appearing in W.P.Nos.16298 and 16299 of 2010 that the trust was established by the minority and if these regulations are implemented, it will lose its minority character. It is also submitted that under Sections 25 (3) and 26(3) of the UGC Act, power to confer retrospective effect to the rules framed by the Central Government and Regulations framed by the UGC has been made as the case may be. It is submitted that no such retrospective effect shall be given so as to prejudice the interest of any person to whom such rules or regulations are made. Therefore, the impugned regulations affecting the interest of the petitioners universities are clearly invalid. He further submitted that under the guise of higher standard of education, the management of the universities cannot be taken away by the Government. There is no rhyme or reason to exclude the close relatives of the President from holding the office of Chancellor. The objects and reasons of the UGC was for determining and allocating university funds made available by the Central Government. When these IDUs were not receiving any funds, these regulations are virtually amounting to nationalisation of private institution. They have virtually hijacked the society / trust which established IDUs. The petitioners university, after its establishment, in 10 to 15 years has earned high reputation as an institution and it had satisfied the authorities with all its requirements. Under the guise of such high standard, they cannot deprive the right of the management. In case of any lapse by any erred individual in the IDU, an action can be taken in respect of such lapse. Therefore, he prayed for setting aside those regulations. 12.Mr.N.R.Chandran, learned Senior Counsel leading Mr.R.Natarajan, learned counsel, while adopting the arguments of Mr.R.Krishnamurthy, learned Senior Counsel, also stated that by the impugned regulations, the existing memorandum of association cannot be altered. If the trust which is mis-managed, can only be dislodged by a petition filed under Section 92 of CPC and not otherwise. 13.Mr.V.T.Gopalan, learned Senior Counsel leading for Ms.B.Saraswathi, had stated that once deemed status is conferred, there is no other power to deprive the said status. They are entirely a self financial bodies and have achieved better performance. While statutory universities are allowed their own method of management, there is no uniform yardstick adopted. He submitted that once fiction is created by law, it must be given full effect. Therefore, having created IDUs under Section 3, they cannot adopt different yardstick. In this context, he referred to a https://hcservices.ecourts.gov.in/hcservices/ judgment of the Supreme Court in Commissioner of Wealth Tax, Hyderabad v. Trustees of H.E.H., reported in (2003) 5 SCC 122 and referred to the following passages found in paragraphs 20 and 21, which read as follows : 20.In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.9 it was held: (SCC p. 123, para 33) “33. The purpose and object of creating a legal fiction in the statute is well known. When a legal fiction is created, it must be given its full effect. In East End Dwellings Co. Ltd. v. Finsbury Borough Council10 Lord Asquith, J. stated the law in the following terms: (All ER p. 599 B-D) ‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.’ The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, LIC of India11. See also Indian Oil Corpn. Ltd. v. Chief Inspector of Factories12, Voltas