IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.3.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.256 of 2011 SRM University (Deemed University under Sec.3 of the UGC Act) rep. by its Registrar SRM Nagar, Kattankulathur – 603 203 Kancheepuram District, Tamil Nadu. .. Petitioner Vs. 1. The Government of India Ministry of Human Resource Development (Department of Higher Education) Shastri Bhavan, New Delhi – 110 115. 2. The Secretary Bahadur Shah Jafar Marg University Grants Commission New Delhi – 110 022. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the first respondent in No.F.10-4/2010/U.3(A) and to quash the order dated 16.11.2010 made thereon and to direct that the petitioner's proposal dated 28.7.2007 to bring the "Off Campus Centre" at Irungalur, Tiruchirapalli, under the ambit of the petitioner University should be considered by the first respondent under the old regulation prevailing at the time of the application and not in accordance with the regulations of 2010 and grant approval to start the said "Off Campus Centre" by the petitioner for the academic year 2011-2012 onwards. For Petitioner : Dr.Rajeev Dhavan, Sr.Counsel Assisted by Ms.Priyanka Singh for Ms.B.Saraswati For Respondents: Mr.M.Ravindran Additional Solicitor General for Mr.S.Haja Mohideen Gisti, SCGSC for 1st respondent Mr.R.Thiagarajan, Sr.Counsel for Mr.P.R.Gopinathan for 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDER The brief facts of the case which are necessary to dispose of the matter are recapitulated below. 2.1. The writ petitioner was declared as an institution deemed to be a university as per Section 3 of the University Grants Commission Act, 1956 (for brevity, "UGC Act") in August, 2002 and it is stated to have campuses and courses under its ambit situated at Chennai and Modinagar, Uttar Pradesh. As per the decision in a public interest litigation before the Supreme Court in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006), wherein the Supreme Court considered a dispute regarding the functioning of deemed universities all over India, the petitioner/University was categorised under 'B' category, whose recognition was made subject to review. 2.2. On 28.8.2007, the petitioner has sent a proposal to the Ministry of Human Resource Development for creating a new campus in Tiruchirapalli to house a medical college and an engineering college under it as off-campus institutions. Simultaneously, a proposal was also sent to the University Grants Commission on 12.1.2008. The University Grants Commission, viz., the second respondent, has granted No Objection Certificate for the proposal in the communication dated 13.2.2008, subject to various conditions, including that the institutes/courses are to be recognised by Medical Council of India and other relevant statutory bodies; that the institutes should follow the norms and standards as prescribed by the respective statutory councils; that a formal proposal is to be sent in the prescribed format to the University Grants Commission for inclusion of these institutes under the ambit of deemed university through Ministry of Human Resource Development; that the proposal will be considered by the University Grants Commission with the help of a duly constituted Expert Committee; and that the final approval of inclusion of these institutions under the ambit of the deemed university will be notified by the Government of India, Ministry of Human Resource Development, on the advice of the University Grants Commission. It is stated that based on the No Objection Certificate, the petitioner has created infrastructural facilities at the cost of Rs.300 Crores, which includes the cost of land and buildings, construction, equipment, etc. 2.3. On 16.1.2009, the petitioner has applied to the first respondent in the prescribed format regarding the said proposals to start new institutions at the off-campus at Tiruchirapalli. On 3.3.2009, the first respondent, after receiving the said proposal, has forwarded the same to the second respondent/University Grants Commission asking it to ensure that all relevant facts and aspects as are applicable to such cases are examined before comments are furnished to the Ministry. https://hcservices.ecourts.gov.in/hcservices/ 2.4. When the No Objection Certificate granted by the University Grants Commission was sent to the Medical Council of India by the petitioner, the Medical Council of India, in its letter dated 13.3.2009, taking note of the fact that the University Grants Commission has not given its final approval for including the said college under the ambit of the petitioner/University, has directed the petitioner to produce the final approval from the University Grants Commission/Ministry of Human Resource Development for inclusion of the said college under the ambit of the SRM University (Deemed University) for further consideration and stated that the proposal will be considered only after receipt of the final permission/notification by the University Grants Commission/Ministry of Human Resource Development. 2.5. It is the case of the petitioner that when the first respondent has informed that the proposed institute does not have valid consent of affiliation from a University as required, the petitioner has approached the Tamil Nadu Dr.M.G.R. Medical University, Chennai for affiliation and the said University, by letter dated 25.5.2009, gave its consent of affiliation for the specific purpose of enabling the petitioner to apply to the Government of India for approval. It is stated that when the said letter of consent of affiliation of the Tamil Nadu Dr.M.G.R. Medical University was communicated to the first respondent, the first respondent, in its communication dated 1.6.2009 addressed to the Medical Council of India, directed it to take necessary action. 2.6. It is thereafter the Medical Council of India has conducted inspection of the off-campus centre at Tiruchirapalli on 5th and 6th June, 2009 and in the letter addressed to the first respondent dated 9.7.2009, has forwarded its recommendation to issue letter of permission for establishment of new medical college at Tiruchirapalli by the petitioner with an annual intake of 150 MBBS students for the academic session 2009-2010 and based on the same, the Central Government has issued letter of intent and letter of permission dated 13.7.2009 and 14.7.2009 respectively. The letter of intent was, however, subject to fulfillment of certain conditions, viz., providing all infrastructural facilities; rectification of deficiencies pointed out in the inspection report; not to admit students till the formal permission of Central Government is granted; and providing of bank guarantee for certain amount. A corrigendum was issued by the Central Government on 30.7.2009 in respect of the said letters dated 13.7.2009 and 14.7.2009 to the effect that "The Vice- Chancellor, SRM University, Chennai, Tamil Nadu" stated as endorsee No.3 in the said letters may be read and substituted with "The Tamil Nadu Dr.M.G.R.University, Chennai, Tamil Nadu". 2.7. It is stated that All India Council for Technical Education has granted approval for starting the engineering college in the same campus with intake of 300 students in five disciplines from the academic year 2010-11 vide order dated 23.7.2010 and the Anna University has granted affiliation to the five disciplines on 27.7.2010. https://hcservices.ecourts.gov.in/hcservices/ 2.8. The University Grants Commission, after making a spot assessment through the Expert Committee in respect of the off-campus medical and engineering colleges, in the communication dated 30.9.2009 addressed to the first respondent, has recommended to include the SRM Institute of Science and Technology, Irungalur, Tiruchirapalli and Chennai Medical College and Hospital, Irungalur, Tiruchirapalli under the ambit of SRM Institute of Science and Technology, Deemed to be University, Chennai, Tamil Nadu. 2.9. Since the Government has raised certain queries to the University Grants Commission, the University Grants Commission, in the letter dated 5.1.2010, requested the petitioner to send its reply to the queries raised by the Government of India, along with supporting documents. The petitioner, in the letter dated 12.1.2010 addressed to the University Grants Commission, has given a detailed reply requesting the University Grants Commission to inform the first respondent about the factual position and grant necessary approval for running the proposed institution. 2.10. Meanwhile, the Medical Council of India has passed an order on 16.11.2009 directing the petitioner to discharge all the students admitted in the academic year 2009-2010, by referring to the letter of the Government of India dated 30.7.2009, wherein the Government of India has only rectified a mistake which has crept in the earlier letters of intent and permission stating "The Vice Chancellor, SRM University, Chennai, Tamil Nadu", instead of "The Tamil Nadu Dr.MGR University, Chennai, Tamil Nadu". It is stated that as against the said order, the petitioner has approached the Madurai Bench of this Court in W.P.No.5903 of 2010 and there has been an order of stay passed on 27.4.2010. 2.11. After the petitioner complied with the deficiencies pointed out, the Tamil Nadu Dr.M.G.R. Medical University, in the order dated 16.2.2010, has granted provisional affiliation to the petitioner to start MBBS Degree Course for the academic year 2009- 2010 with an annual intake of 150 students and the said provisional affiliation was continued by the Tamil Nadu Dr.M.G.R. Medical University for the academic year 2010-2011 by order dated 12.11.2010. The Medical Council of India also, in its letter dated 12.7.2010, has renewed permission for admission of second batch of 150 MBBS students for the academic year 2010-2011. Based on these subsequent developments, the writ petition in W.P.No.5903 of 2010 was closed. 2.12. In the meantime, on 21.5.2010, the second respondent/ University Grants Commission has notified the UGC (Institutions Deemed to be Universities) Regulations, 2010 (for brevity, "the Regulations, 2010") 2.13. The petitioner has filed W.P.No.10952 of 2010 for a direction against the Government to forthwith grant necessary approval/sanction for starting off-campus institutions, as stated above, and the said writ petition came to be allowed on 15.6.2010, https://hcservices.ecourts.gov.in/hcservices/ directing the Government to grant approval within two weeks from the date of receipt of the said order. However, the Government has not complied with the same and it was reported that a writ appeal was filed against the said order. 2.14. Having learnt that the Government of India in the letter dated 6.7.2010 addressed to the University Grants Commission has directed that in respect of 15 institutions, including the petitioner/University, the proposals are to be reconsidered in accordance with the provisions of the Regulations, 2010, the petitioner has challenged the said letter in W.P.No.16811 of 2010. The petitioner along with other deemed universities has also challenged the validity of the Regulations, 2010 in W.P.No.16015 of 2010. It is the case of the petitioner that in the said writ petition (W.P.No.16015 of 2010), the learned Senior Counsel who appeared for the University Grants Commission, has informed the Court that the University Grants Commission is not going to proceed further for a period of two weeks due to the pendency of the matter before the Supreme Court and that submission was recorded. 2.15. In the meantime, W.A.No.1982 of 2010 came to be filed by the respondents against the order passed in W.P.No.10952 of 2010. The Hon'ble First Bench, by order dated 22.9.2010, disposed of the writ appeal by modifying the order of the learned Single Judge to the effect that the appellant therein shall consider the application for approval/sanction to start the off-campus institutions in accordance with relevant Rules and Regulations of the University Grants Commission and take a decision within four weeks. 2.16. It was thereafter the first respondent has passed the impugned order dated 16.11.2010, on the basis of an advice of the second respondent/University Grants Commission dated 9.11.2010, directing the petitioner to apply afresh in accordance with the Regulations, 2010. 2.17. It is also stated that in respect of a similar case pertaining to grant of off-campus status to a Law College at Noida of the Symbiosis University, which is also a deemed university from Pune, W.P.(Civil) No.380 of 2010 came to be filed before the Hon'ble Supreme Court and that was directed to be tagged along with W.P. (Civil) No.142 of 2006 (Viplav Sharma v. Union of India and others) and in the meantime, the petitioner therein was permitted to admit students and conduct classes, however by informing the students before admission about the pendency of the writ petition. 2.18. In the said factual scenario, the above writ petition has been filed challenging the impugned order of the first respondent on various grounds, including: (i) that the petitioner has made application much before the Regulations, 2010 came into force and the University Grants Commission and the Government have already considered the entire proposal and taken decision, based https://hcservices.ecourts.gov.in/hcservices/ on which the petitioner has spent huge amount in starting the college, and therefore, the Regulations, 2010 cannot be applied; (ii) that the undertaking given on behalf of the University Grants Commission that the Regulations, 2010 will not be applied has been violated; (iii) that the petitioner has been placed under Category 'B', the institutions which are found to be deficient, but need to be rectified in a period of three years, and therefore, the status of deemed to be university continues and the matter is pending in the Supreme Court; (iv) that the Expert Committee of the University Grants Commission in the report has already recommended the inclusion of the off-campus institutions under the ambit of the petitioner, Deemed to be University, and in such circumstances, there is nothing pending for the consideration of the University Grants Commission; (v) that Regulation 23 of the Regulations, 2010 cannot be applied retrospectively in all cases, especially to the case on hand, wherein the statutory authorities have discharged their duties; (vi) that the impugned order is inconsistent and when the University Grants Commission, after inspecting the campus, has given a clean recommendation, it cannot go back and recommend the first respondent to issue direction to the petitioner/University to apply afresh under the Regulations, 2010; (vii) that the provision of rule itself is basically prospective in nature and the rule making power has been statutorily exercised by the Central Government under Section 25 of the UGC Act and the impugned regulations cannot be justified on the authority exercised by the University Grants Commission purportedly to be under Section 26(1)(f) and (g) of the UGC Act and therefore, the impugned Regulations are ultra vires the provisions of the UGC Act as well as the Constitution of India; (viii) that the Regulations, 2010, if tested in the light of Article 14 of the Constitution of India, have to be struck down; (ix) that the petitioner/University, having relied upon the conduct of the respondents and spent huge amount of money in starting the off-campus centre, cannot be made to wait further under the Regulations, 2010; and (x) that the legitimate expectation of the petitioner has been breached by the impugned order of the first https://hcservices.ecourts.gov.in/hcservices/ respondent. 3.1. In the counter affidavit filed by the first respondent, while denying the various averments made by the petitioner in the affidavit, it is stated that the declaration of a college as a constituent institution under a deemed university requires diligence and the interest of students is not involved and therefore, there is no urgency. 3.2. It is stated that every decision of the Central Government for adding any existing college affiliated to a statutory university within the fold of an institution deemed to be a university as its constituent unit is to ensure that every student enrolled in such college would have to be examined and awarded degree by the affiliating universities and to that effect no objection certificate has to be obtained from the affiliating university, which ensures that the existing colleges do not enroll students unauthorisedly. Admission of students or condonation of such admission in respect of the institution which has not been notified as a constituent unit of deemed university or not affiliated to a statutory university is against the policy of the government, as approved by the Apex Court in TMA Pai Foundation v. State of Karnataka, [2002] 8 SCC 481. 3.3. It is stated that the Regulations, 2010 has come into effect from 21.5.2010 replacing the Guidelines, 2000 and therefore, the Government as well as the University Grants Commission are bound by the said Regulations and hence, the recommendation dated 30.9.2009 received from the University Grants Commission in respect of the proposal of the petitioner was returned by the Government to the University Grants Commission for its advice, in view of the provisions of Section 3 of the UGC Act read with Clause 23 of the Regulations, 2010. According to the first respondent, as per Clause 23 of the Regulations, 2010, the pending proposals are to be governed by the Regulations, 2010. 3.4. It is stated that it is in compliance with the direction in W.A.No.1982 of 2010, the Government has passed the impugned order on 16.11.2010, which clarifies that the petitioner has to apply under the Regulations, 2010 for inclusion of two colleges within its ambit and that was based on the advice of the University Grants Commission dated 9.11.2010. 3.5. It is stated that the case of Symbiosis International University is different and they had applied for approval for starting off-campus centre at Noida and including the centre under the ambit of the institution under the Regulations, 2010 and the inspection of the University Grants Commission was done as per the provisions of the said Regulations. However, the petitioner herein has not made any application under the Regulations, 2010 and therefore, there is no obligation on the part of the respondents to consider their case. https://hcservices.ecourts.gov.in/hcservices/ 3.6. It is stated that the Review Committee of the Government has categorised the said Symbiosis International University on 6.7.2009 as an institution which needs to take corrective measures to satisfy deemed university status and therefore, the Government has not approved the inclusion of the institution's off-campus centre at Noida and the Apex Court, in the order dated 3.12.2010, has approved Noida campus, subject to the outcome of the writ petition in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006). 3.7. It is also stated that the Government's duty is to maintain the quality of education and the impugned order was with application of mind. All pending applications are considered as per the Regulations, 2010 and when a new regulation comes into force, generally, the applications are to be considered under the said regulation. Mere filing of application under the old regulations does not automatically guarantee its consideration under the old guidelines/regulations, since the petitioner has no vested right. It is also stated that the application filed by the petitioner seeking inclusion of two institutions at Tiruchirapalli under its ambit has been rejected, even though, in the impugned order, it is stated that the petitioner has to apply under the Regulations, 2010. 3.8. It is stated that, in effect, the petitioner wants to challenge the finding of the Committee of the academic experts constituted by the Government to review the functioning of institutions deemed to be universities and that matter is sub judice in Apex Court in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006). 3.9. It is stated that the petitioner's case is covered under Regulation 23 of the Regulations, 2010 and application was still pending and no notification or order was passed by the Central Government and therefore, the petitioner's plea that their application should be considered under the Guidelines, 2000 is untenable. The advice of the University Grants Commission dated 9.11.2010 makes it clear that the petitioner is required to submit fresh application under the Regulations, 2010, rather than Guidelines, 2000. 3.10. It is also denied that Clause 23 of the Regulations, 2010 is contrary to Section 25(3) of the UGC Act, especially when the petitioner has no vested right. All pending applications either before the Government or the University Grants Commission are to be considered under the Regulations, 2010, which is intended to ensure maintenance of academic standards. When the University Grants Commission itself has given advice on 9.11.2010, the petitioner cannot rely upon the earlier recommendation of the University Grants Commission dated 30.9.2009 to insist that its application has to be considered under the Guidelines, 2000. 3.11. It is stated that though the petitioner has applied prior to the coming into force of the Regulations, 2010, in law the request for approval has to be considered as per the new regulations in https://hcservices.ecourts.gov.in/hcservices/ force, especially in the legal position that approval/sanction has to be considered by applying the rules and regulations prospectively which are in force at the time when grant/sanction is made. 3.12. It is stated that, in any event, the petitioner has been given reasonable opportunity to apply under the Regulations, 2010 to enable the respondents to consider the request of the petitioner, if eligible. 4.1. In the counter affidavit filed by the second respondent/ University Grants Commission, while questioning the maintainability of the writ petition on law and fact, it is stated that on the advice of the second respondent, the Government of India has conferred the status of Deemed University to the petitioner, as per the notification dated 2.8.2002. 4.2. It is stated that the Government, in the letter dated 3.3.2009, has forwarded a proposal received from the petitioner to start off-campus centre at Tiruchirapalli comprising of the SRM College of Engineering and Technology, Irungalur, Tiruchirapalli and Chennai Medical College and Hospital, Irungalur, Tiruchirapalli under its ambit and that was examined by the University Grants Commission administratively as per the University Grants Commission Guidelines of 2004 and an Expert Committee was constituted, which made a spot assessment of infrastructure of the petitioner and other institutions and the Committee, which has visited the off-campus centre on 12th and 13th September, 2009, has submitted a report in the meeting of the second respondent held on 25.5.2009 and the University Grants Commission has resolved to approve the recommendations of the Expert Committee to recommend the Ministry of Human Resources Development for inclusion of the said two institutions under the ambit of SRM Institute of Science and Technology, which is a deemed to be university, and that was forwarded to the first respondent on 30.9.2009. 4.3. Based on the recommendation of the University Grants Commission, the first respondent has informed the petitioner to the effect that since there was a review of deemed universities, the Government has decided to keep all applications and their process pending and also stated that the Regulations, 2010 is also under consideration of the Government. It was also stated that the Regulations, 2010 came into force from 21.5.2010 and as per Clause 23 of the Regulations, inasmuch as the application of the petitioner for starting off-campus centre is still pending, the same has to be considered as per the Regulations, 2010. 4.4. The writ petition filed by the petitioner in W.P.No.10952 of 2010 for a direction to consider the proposal for sanction for starting off-campus institutions was allowed on 15.6.2010 directing the first respondent to grant approval/sanction and that was challenged by the respondents in W.A.No.1982 of 2010 and the Division Bench has modified the order to the effect that the first respondent shall consider the case of the petitioner for grant of approval and https://hcservices.ecourts.gov.in/hcservices/ pass orders. 4.5. In the meantime, since the Regulations, 2010 has come into force, the second respondent had to reconsider the recommendation dated 30.9.2009, based on the communication of the first respondent dated 14.12.2009. It was in those circumstances, it is stated that the University Grants Commission, while referring to the letter of the Government dated 6.7.2010 and based on the decision taken by it on 27.9.2010, has informed the first respondent that the decision of the University Grants Commission is also applicable in respect of the proposal of petitioner and the petitioner was informed by the University Grants Commission to apply afresh as per the Regulations, 2010, if eligible. 4.6. It is also stated that the Regulations, 2010 in force and also the prior guidelines have prescribed the procedure in processing the applications for approval. It is stated that even though the petitioner has applied prior to the coming into force of the Regulations, 2010, in law the request of the petitioner has to be considered only under the new regulations and the petitioner has no vested right. 5.1. It is the contention of Dr.Rajeev Dhavan, learned Senior Counsel