W.P.(C) Nos.1995/08 & 3885/08 Page 1 of 55 * IN THE HIGH COURT OF DELHI AT NEW DELHI JUDGMENT RESERVED ON: 07.12.2008 % JUDGMENT DELIVERED ON: 20.02.2009 + (1) W.P.(C) 1995/2008 BHARATI VIDYAPEETH & ORS. ..... Petitioners Through: Dr. A.M. Singhvi, and Mr. Udai Lalit, Senior Advocates with Mr. Prasenjit Keswani, Advocate. versus GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY & ORS. ..... Respondents Through: Mr. A. K. Singla, Senior Advocate with Mr.G. D. Goel and Mr. Sanjiv Goel, Advocates for respondent no.1. Mr. Amiet Andley, Advocate for respondent no.2. Mr. Amitesh Kumar, Advocate for respondent no.3/UGC. Mr. R. N. Singh, Advocate for respondent no.4. AND (2) W.P.(C) 3885/2008 BHARATI VIDYAPEETH & ORS. ..... Petitioners Through: Dr. A.M. Singhvi, Sr. Advocate with Mr. Udai Lalit, Sr. Advocate & Mr. Prasenjit Keswani, Advocate. versus GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY & ORS. ..... Respondents Through: Mr. A. K. Singla, Senior Advocate with Mr.G. D. Goel and Mr. Sanjiv Goel, Advocates for respondent no.1. Mr. Amiet Andley, Advocate for respondent no.2. Mr. Amitesh Kumar, Advocate for respondent no.3/UGC. Mr. R. N. Singh, Advocate for respondent no.4. W.P.(C) Nos.1995/08 & 3885/08 Page 2 of 55 CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? VIPIN SANGHI, J. 1. By this common judgment I propose to dispose off the aforesaid two writ petitions. 2. The petitioners state that petitioner no.1, Bharti Vidyapeeth, is a registered trust and is involved in promoting education throughout the country. It is stated that petitioner No.2 Bhartiya Vidyapeeth is a deemed University under Section 3 of the University Grants Commission (UGC) Act, 1956. It is situated at Pune, having various constituent institutions in the country. Petitioner No.3, Bhartiya Vidyapeeth College of Engineering, is an engineering college set up by the petitioner No.1 trust having its campus in New Delhi. Petitioner No.3 institute imparts courses leading to the grant of B. Tech. degree in engineering. Petitioner No.4, Bhartiya Vidyapeeth Institute of Computer Applications and Management, New Delhi is an institute imparting education in the field of computer education and management. It has been set up by petitioner No.1 and has its campus at the same location as petitioner No.3 in New Delhi. Petitioner No.4 imparts courses and programmes leading to the grant of Master in Computer Applications (MCA) degree. Respondent No.1 W.P.(C) Nos.1995/08 & 3885/08 Page 3 of 55 Guru Gobind Singh Indraprastha University (GGSIP University for short) is constituted under the Guru Gobind Singh Indraprastha University Act, 1998. Petitioner Nos.3 & 4 institutions have been affiliated with respondent No.1 University since their inception. Respondent No.2 is the Government of NCT of Delhi impleaded through the Secretary, Department of Training and Technical Education (DTTE). Respondent Nos.3 & 4 are the University Grants Commission (UGC for short), constituted by the University Grants Commission Act, 1956 (herein referred to as UGC Act) and Ministry of Human Resources Development, Government of India, respectively. 3. Petitioner No.1, with a view to set up an engineering college in Delhi applied for allotment of institutional land to the DDA. This application was made on 12.05.1999. Government of NCT of Delhi recommended the case of the petitioner for allotment of land to DDA and vide communication dated 02.08.1999 informed the petitioner that it had recommended the petitioners‟ case to the DDA for allotment of about 5 acres of land for setting up an engineering college on various terms and conditions set out in the said letter. The DDA approved allotment of land admeasuring 14862.35 sq. meters to the petitioner No.1 on perpetual leasehold basis for setting up an engineering college and hostel for students. The premium and ground rent charged by the DDA of Rs.2,72,91,941/- was paid by the petitioner. Thereafter, the petitioner No.3 institution was developed and set up on the said land. Respondent No.4 institution was also set up on the same campus. W.P.(C) Nos.1995/08 & 3885/08 Page 4 of 55 4. The Ministry of Human Resources (Department of Higher Education), Government of India, issued a notification dated 14.02.2007 under Section 3 of the UGC Act, whereby it was declared that upon the recommendation of the UGC, the petitioner Nos.3 & 4 were included within the ambit of “Bhartiya Vidyapeeth” deemed to be University, Pune, as its constituent institutions for the purpose of the UGC Act from the date of disaffiliation of the said two institutions from the respondent No.1, GGSIPU, the affiliating University, subject to the petitioner fulfilling various conditions mentioned in para 5 of the said notification. The notification, inter alia, required the petitioners to take immediate steps to disaffiliate themselves from the respondent No.1 University. A little later, the respondent UGC issued a notification dated 13.04.2007 in line with the notification issued by respondent No.4 on 14.02.2007 aforesaid. This notification stipulated that the constituent institutions, namely, petitioner Nos.3 & 4 shall abide by the norms laid down by UGC. 5. In the meantime, the petitioners vide letter dated 17.02.2007 informed the respondent University that from the academic year 2007- 08 it would be governed by the petitioner deemed to be University. The petitioners requested the respondent University to start the gradual disaffiliation of the said two institutions. It was also stated that the students already enrolled in the courses being run by the petitioner Nos.3 & 4 institutions would continue to be students of the respondent University. Consequently, the respondent University informed respondent No.2, Government of NCT of Delhi of the aforesaid W.P.(C) Nos.1995/08 & 3885/08 Page 5 of 55 development and sought the guidance of respondent No.2 on the subject of granting no objection certificate for disaffiliation to the petitioner Nos.3 & 4 institutions. 6. It appears that respondent No.2 expressed reservations against granting its no objection to the disaffiliation of the petitioner Nos. 3 & 4 institutions from the respondent University, as the grant of the said disaffiliation would result in liberating the said institutions from the supervision and control of the respondent State Government, inter alia, in relation to grant of admissions to students in these institutions. Admittedly, upon disaffiliation, the students would be admitted to the courses offered by petitioner Nos.3 & 4 on all India basis, whereas, as a condition of affiliation with the respondent University and under the “The Delhi Professional Colleges or institutions (Prohibition of Capitation Fee, Regulations of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence) Act, 2007” (hereinafter referred to “Act of 2007”) the petitioner institutions have been offering 85% of the seats to students who come from Delhi region, and only the remaining 15% seats are filled on all India basis. 7. To satisfy this concern of respondent No.2, the petitioners issued a letter dated 04.04.2007 undertaking to respondent No.2 that they would grant reservation in respect of 85% of the seats from amongst students of Delhi region for being filled by merit w.e.f. the academic year 2007-08. On 26.04.2007 respondent No.2 forwarded a format of an undertaking that it required petitioner No.3 to furnish, before the W.P.(C) Nos.1995/08 & 3885/08 Page 6 of 55 matter regarding disaffiliation is processed further. The said format is material and is reproduced hereinbelow: - “UNDERTAKING (to be submitted in non-judicial stamp paper of Rs.100) I _____________________________________, ____________________ of Institute is competent to give this undertaking as authorised by the Resolution No.__________ of the ___________________ Society, do hereby undertake as under: - 1. That the institute is applying for the status of a constituent college of _________________ (Deemed University), Pune. 2. That the institute is presently affiliated to the GGSIP University, Delhi for conducting course in ____________ disciplines. 3. That the Government of India in the Ministry of HRD has notified the institute as constituent college of the Bhartiya Vidya Peeth vide notification no._________________ dated ____________ subject to the disaffiliation for the GGSIP University. 4. That the Institute has been allotted land by the DDA on concessional rates on recommendation of Government of NCT of Delhi. 5. That the AICTE accorded the approval to the courses being run in the institute on recommendation/NOC of the Government of NCT of Delhi for facilitating technical education in Delhi. 6. That presently, the institute is following the statutes, rules, Regulations and policy guidelines of the Government of NCT of Delhi with regard to the admission, reservation of seats/quotas and fee structure. 7. That in lieu of the land allotted on concessional rates and the NOC granted by the GNCTD to seek approval of AICTE, the institute hereby undertakes to continue to abide by the statutes, rules, Regulations and policy guidelines of the Government of NCT of Delhi or any other institution as may be issued with regard to the admission, reservation of seats/quotas and fee structure. The institute hereby agrees to provide W.P.(C) Nos.1995/08 & 3885/08 Page 7 of 55 85% of its seats to students from Delhi as prescribed by the govt. of NCT of Delhi and to provide reservation to other categories as prescribed by Govt. of NCT of Delhi. 8. That in case of any violation of any of the above conditions and/or the statutes, rules, Regulations and policy guidelines of the Government of NCT of Delhi with regard to the admission, reservation of seats/quotas and fee structure, by the institute, the GNCTD may take appropriate legal action against the institute which may include the recommending the cancellation of allotment of land or payment at market rate for the land allotted to the institute to the DDA and de-recognition of courses by the AICTE and UGC. 9. That we undertake to bound by the regulation of the fee regulatory committee & the admission regulatory committee or such other authority as may be prescribed by the GNCTD in compliance of the aforementioned clauses in this undertaking. 10. That the Govt. of NCT of Delhi is authorised to verify the compliance of above mentioned conditions by calling the relevant documents/proofs.” (emphasis supplied) 8. The petitioners responded to the said requirement of respondent No.2 on 04.05.2007. It was stated that since the petitioner institutions were included within the ambit of Bhartiya Vidyapeeth deemed to be University, furnishing the undertaking as desired by respondent No.2 would tantamount to agreeing to be governed by two different controlling bodies, namely, the UGC and the Government of NCT of Delhi. The same would not be consistent with and would violate the Statutes, Rules and Regulations of the UGC. The petitioners also stated that it would continue to use the allotted land for the purpose for which it was allotted. The petitioners stated that they would not be in a position to furnish the undertaking as desired by respondent No.2. W.P.(C) Nos.1995/08 & 3885/08 Page 8 of 55 The petitioners sent two more communications on 08.05.2007 and 08.06.2007 once again seeking issuance of no objection certificate by respondent No.2 for the purpose of disaffiliation of the petitioner institutions. The petitioners further state that even the Delhi Development Authority has given its no objection to the disaffiliation of the petitioner institutions. However, no action was taken by the respondent, Govt. of NCT of Delhi, and respondent No.1, GGSIP University, with the result that for the academic session 2007-08, the petitioners could not admit the students in terms of the UGC Regulations. Even for the academic session 2008-09, in its brochure, the respondent University continued to show the petitioner institutions as institutions affiliated to it for the purpose of filling of the seats in the petitioner institutions on the basis of the common admission test. 9. Faced with the aforesaid situation, on or about 11.03.2008 the petitioners preferred W.P.(C) No.1995/2008 against the respondent, inter alia, seeking the issuance of a writ in the nature of mandamus directing respondent Nos.1 and 2 to grant disaffiliation to the petitioner Nos.3 & 4 from the respondent No.1 University from the following academic session. In the alternative, the petitioners sought issuance of a direction to respondent Nos.1 & 2 to immediately decide the issue of grant of disaffiliation to petitioner Nos.3 & 4 before the next academic session. The Court issued notice in this petition to the respondents on 18.03.2008. The notices were accepted on behalf of the respondent Nos.1 to 4 in Court. Time was granted for filing the reply/counter affidavits. W.P.(C) Nos.1995/08 & 3885/08 Page 9 of 55 10. During the pendency of the said writ petition, the respondent No.2 issued a communication dated 14.05.2008 stating that since the petitioners had failed to furnish the undertaking required of them in the formats sent along with the letter dated 26.04.2007, and the notification dated 13.04.2007 issued by the UGC is a conditional notification effective from the date of disaffiliation of the petitioner institutions from the affiliating University, it had been decided by the Department of Training and Technical Education of the Govt. of NCT of Delhi not to accede to the petitioner‟s request for granting no objection for disaffiliation of the petitioner institutions from the respondent No.1 University. The reason given by respondent No.2 in the said communication, inter alia, was that the petitioner institutions had obtained land from the DDA, based on the recommendation of the Delhi Government. 11. After the aforesaid communication was issued, the petitioners preferred W.P.(C) No.3885/2008 to impugn the said communication and also to seek the issuance of the writ of mandamus directing the respondent Nos.1 & 2 to grant disaffiliation to petitioner Nos.3 & 4 from the respondent No.1 University. 12. The submission of learned senior counsels for the petitioners, Mr. Uday Lalit and Dr. A.M. Singhvi, is that though the petitioners have no difficulty in reserving 85% of the seats for being filled up from students hailing from Delhi region, the said requirement and other regulatory requirements being insisted upon by respondent No.2 (for considering the application of the petitioners for disaffiliation) is unreasonable and W.P.(C) Nos.1995/08 & 3885/08 Page 10 of 55 illegal. By reference to the letter of allotment dated 15.10.1999 issued by the DDA, it is submitted that no condition was placed on the petitioners to the effect that they would be bound to follow the norms/guidelines of the Government of NCT of Delhi including in relation to the admisison/employment criteria, fee structure etc. It is argued that there would be no breach or violation of the conditions upon which the allotment of land was made by the DDA, merely because petitioner Nos.3 & 4 would cease to be institutions affiliated to respondent No.1 University, since they would, in any event, continue to remain institutions imparting the same educational courses, which they have been imparting from their inception. 13. It is argued that respondent No.2 cannot seek to exercise control and supervision over the petitioner institutions any more, they having been declared as constituent institutions of Bhartiya Vidyapeeth deemed to be University, Pune, vide notifications dated 14.02.2007 issued by the Government of India and 13.04.2007 issued by the UGC. 14. Reference is made to Section 2(e) of the UGC Act defines the expression “University” to mean a University established or incorporated by or under a Central Act, a Provincial Act or a State Act and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under the Act. The Commission is defined in Section 2(a) to mean, the University Grants Commission established under Section 4 of the UGC Act. Section 3 states that the Central Government may, on the advice of the W.P.(C) Nos.1995/08 & 3885/08 Page 11 of 55 Commission, declare, by notification in the official gazettee that any institution for higher education, other than a University, shall be deemed to be a University for the purpose of the said Act, and on such a declaration being made, all the provisions of the UGC Act shall apply to such an institution as if it were a University within the meaning of clause (f) of Section 2. It is argued that the notification dated 14.2.2007 issued by the Central Government has been issued under Section 3 of the UGC Act, on the advice of the UGC whereby petitioner nos. 3 and 4 institutions, which are institutions of higher education and did not by themselves enjoy the status of being a University, have been included under the ambit of Bhartiya Vidyapeeth i.e. petitioner No.2, a deemed to be University as its constituent institution for the purposes of the UGC Act. The said position has been reiterated by the UGC vide its notification dated 13.4.2007. However, both these notifications state that petitioners 3 and 4 would become constituent institutions of Bhartiya Vidyapeeth, deemed to be University, Pune “from the date of disaffiliation of these institutions from the affiliating University, namely Guru Gobind Indraprastha University, Kashmere Gate, Delhi”. Reference is also made to the various conditions imposed by the Central Government in the declaration made by the Central Government. These conditions, inter alia provide:- “2. …….The declaration relating to inclusion of the institutions indicated in para 1 of the notification, will be subject to the following conditions. (a) ………. (b) ……… W.P.(C) Nos.1995/08 & 3885/08 Page 12 of 55 (c) The `Deemed-to-be-University‟ Institute shall take immediate steps for disaffiliation of the institutions concerned from Guru Gobind Singh Indraprastha University, Delhi. (d) Bharati Vidyapeeth shall award degrees, etc in respect of the courses run by the institutions mentioned in para 1 of the notification only to those students who are admitted/enrolled with them subsequent to the date of this notification. (e) As for those students who are already enrolled with the institutions mentioned in para 1 of the notification, prior to the date of this notification, the present affiliating University viz. Guru Gobind Sindh Indraprastha University, Delhi shall have to agree to examine and grant degrees to them on successful completion of the courses/programmes they are pursuing in these institutions presently. (f) ……….. (g) The deemed-to-be-University under the ambit of which the said institutions are being included, shall suitably modify/ amend its Memorandum of Association (MoA) and Rules and finalise them in conformity with the University Grants Commission‟s Model MoA and Rules for the Deemed to be Universities after the inclusion of these institutions, on a priority basis. (h) The `Deemed-to-be-University‟ as well as all its constituent shall continue to abide by the norms and guidelines as laid down by the UGC, AICTE, etc from time to time, as are applicable to „Deemed-to-be- Universities.” 15. The submission of learned senior counsels for the petitioners is that the subject matter of “Co-ordination and determination of W.P.(C) Nos.1995/08 & 3885/08 Page 13 of 55 standards in institutions for higher education or research and scientific and technical institutions” is covered by entry 66 of List I of Schedule VII of the Constitution. The University Grants Commission is constituted as a statutory body “to make provision for the co- ordination and determination of standards in Universities”. Once an institution for higher education and research is declared as a deemed to be University (herein also referred to as a “Deemed University”), or a constituent institution of a deemed to be University for the purposes of the UGC Act, all the provisions of the UGC Act “shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2”. The executive power of the Central Government is co- extensive with the legislative power of the Parliament. Consequently, once an institution is declared to be a deemed University, or a constituent institution of a deemed University, such an institution is bound by all the Rules and Regulations framed by the UGC, or by the Central Government in exercise of its statutory powers under the UGC Act. The power of the State Government to legislate in respect of institutions of higher education or research and scientific and technical institutions is derived from entry 25 of List III i.e. the concurrent list of the VIIth Schedule to the Constitution which reads “Education, including technical education, medical education and Universities, subject to the provisions of entries 63, 64, 65 & 66 of List I; vocational and technical training of labour”. It is therefore argued that the power of the State Government to either legislate, or to issue executive directions to institutions of higher education is subject to the power of the Central Government to legislate or issue executive directions, inter alia, under W.P.(C) Nos.1995/08 & 3885/08 Page 14 of 55 entry 66 of List I of the VIIth Schedule. Once an institution of higher education has been declared as a deemed University or a constituent institution of a deemed University under Section 3 of the UGC Act, the State Government cannot seek to legislate in respect of, or exercise executive control over such an institution. It is also submitted that the notification issued by the Central Government under Section 3 of the UGC Act cannot be nullified and/or thwarted by the State Government by withholding the grant of NOC unjustifiably. It is also argued by learned senior counsel for the petitioners that merely because respondent no.2 had recommended the case of the petitioners for allotment of institutional land to the DDA and thereafter land was allotted by the DDA at concessional rates, the respondent no.2 cannot withhold the grant of no objection to the disaffiliation of petitioners 3 and 4 institution. 16. Dr. Singhvi has also argued that the approach of respondent no.2 in seeking to exercise supervision and control, inter alia, in respect of admission to these institutions post disaffiliation, so as to preserve 85% of the seats for students from Delhi Region, is a parochial approach. If such an approach of a State Government is to be sanctioned and accorded approval, it would not be possible to accord the status of deemed University to institutions of higher education, and research in any State within the Indian Union, since all such institutions would, more often than not, be located in one or the other State of the Indian Union. W.P.(C) Nos.1995/08 & 3885/08 Page 15 of 55 17. Learned senior counsel for the petitioners have relied upon State of Tamil Nadu and Another V. Adhiyaman Educational & Research Institute and Others, (1995), 4 SCC 104, Jaya Gokul Educational Trust V. Commissioner & Secretary To Government Higher Education Department, Thiruvanathapuram, Kerala State and Another, (2000) 5 SCC 231 and Bharti Vidyapeeth (Deemed University) & Others v. State of Maharashtra & Anr. in support of the aforesaid submissions. 18. Counter affidavits were filed by the respondents in W.P.C.1995/2008. Respondent no.1, GGSIP University, in its counter affidavit states that the Central Government had earlier issued a notification dated 26.4.1996, on the advice of the UGC whereby various institutions of Bhartiya Vidyapeeth at Pune were declared as deemed to be University for the purpose of the UGC Act. It is argued that Bhartiya Vidyapeeth is not an institution for the purpose of the UGC Act. It is a trust registered under the Bombay Public Trust Act. The Central Government has not conferred the status of “deemed to be University” under Section 3 of the UGC Act upon Bhartiya Vidyapeeth, Pune. It is the 12 institutions mentioned in the notification dated 26.4.1996 which have been granted the status of “deemed to be University” under Section 3 of the UGC Act. Respondent no.1 submits that the notification dated 14.2.2007 issued by the Central Government and relied upon by the petitioners recites that petitioner no. 3 and 4 institutions “are included under the ambit of Bhartiya Vidyapeeth, deemed to be University, Pune as its constituent W.P.(C) Nos.1995/08 & 3885/08 Page 16 of 55 institutions”. It is also argued that “deemed to be University” institutions are only stand alone teaching institutions, and cannot have other constituent/affiliated institutions. This declaration is, on the fact of it incorrect and defective, since Bhartiya Vidyapeeth is not a “deemed to be University”. 19. Reference is made to Statute 24 framed under Section 26(2) of the GGSIP University