SCA/9840/2008 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9840 of 2008 With SPECIAL CIVIL APPLICATION No. 9841 of 2008 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH ============================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================= GNANYOG EDUCATION AND WELFARE TRUST - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ============================================= Appearance : MR YN OZA Sr. Advocate with MR BP GUPTA for Petitioner(s) : 1, MR SUNIT SHAH GOVERNMENT PLEADER with MR DIPEN DESAI AGP for Respondent(s) : 1, MR MITUL K SHELAT for Respondent(s) : 2. ============================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH Date : 26/09/2008 COMMON CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) These petitions raise common questions about legality and constitutional validity of the Government Resolution dated 4.10.2007 SCA/9840/2008 2 JUDGMENT issued by the State Government in the Education Department, the operative portion of which reads as under :- “As the universities situated in the State are capable of giving affiliation to colleges in adequate proportion, the State Government resolves not to grant “No Objection Certificate” to the institutions desiring to start college with affiliations with universities situated in other States. The functioning of educational work, which at present are being performed by the colleges affiliated with the universities situated in other States, shall remain unchanged.” 2. The facts leading to filing of these petitions, briefly stated are as under :- These petitions are filed by a trust registered under the Bombay Public Trusts Act, 1950. The petitioner – trust is desirous of establishing a Library and Information Science college and another college for Degree in Master of Social Works and to get these colleges affiliated to SNDT Women's University, Mumbai. The said trust obtained provisional permission from SNDT Women's University for starting the above colleges under letters dated 4.1.2008 indicating that provisional permission to start the aforesaid colleges from academic year 2008-09 was subject to “No Objection Certificate” from the State Government. The trust accordingly applied to the State Government in the Education Department on 19.6.2008 for “No Objection Certificates” of the State Government for affiliation of the above colleges to SNDT University. The State Government has not issued any such no objection certificate for either of the colleges on account of its policy as contained in the aforesaid Government Resolution dated 4.10.2007. Hence, the present petitions challenging the aforesaid Government Resolution dated 4.10.2007 and for consequential directions. 3. Mr YN Oza, learned counsel for the petitioner- trust has submitted that the SNDT Women's University was established in the year 1916 to SCA/9840/2008 3 JUDGMENT support and encourage women's education in the entire country. Though the said University is constituted as per the Act passed by the Legislature of then Bombay State and presently continued under the Maharashtra Universities Act, 1994, the University has all India jurisdiction and conducts or affiliates only women's education colleges/ institutions in various States and Union Territories in India and even abroad. It is further submitted that the State Government cannot impose a blanket ban on affiliation of a women's college in Gujarat to a University outside the State. Relying on the provisions of Articles 245 and 246 of the Constitution read with Entry 66 in the Central list in Schedule VII to the Constitution, it is submitted that “coordination and determination of standards in institutions of higher education” is a matter within the domain of the Centre and that the Parliament having enacted the UGC Act, 1956 and the UGC also having recognized the SNDT Women's University as having All India jurisdiction, the impugned resolution is unconstitutional. Placing strong reliance on the decisions of the Apex Court in State of State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors., (2006) 9 SCC 1, Prof. Yashpal vs. State of Chhattisgarh, (2005) 5 SCC 420 and Bharati Vidyapeeth vs. State of Maharashtra (2004) 11 SCC 755 (para 7), it is vehemently contended that the State Government has no power to refuse to grant NOC merely on the ground that the University (to which the colleges to be established by the petitioner – trust are seeking affiliation) is situate outside the State of Gujarat. Lastly, it is submitted that the entire Government Resolution is based on the premise that if a college in Gujarat State is affiliated to a University outside the State, the effective monitoring/ SCA/9840/2008 4 JUDGMENT regulation of the State Government with regard to the norms / standards of education, administration cannot be done and if these colleges will be started with affiliation to a University situate within the State, monitoring of the institution can be done effectively and efficiently. However, the petitioner – trust has no objection if the colleges to be established by it are monitored / regulated by the State Government with regard to infrastructure, administration and fee structure. 4. Mr Mitul K Shelat, learned counsel for the SNDT Women's University has submitted that the State Government is not justified in imposing a blanket ban on affiliation of women's colleges within the State of Gujarat to the SNDT University merely on the ground that the latter is having its headquarters at Mumbai. It is submitted that the SNDT University will have no objection to the Government of Gujarat regulating and monitoring the infrastructure, administration and fee structure of the colleges within the State of Gujarat proposed to be affiliated to SNDT University. However, it is submitted on behalf of SNDT University that in the matter of admissions, it would not be possible for such colleges to participate in the centralised admission system for colleges within the State of Gujarat, because the SNDT University conducts its own common entrance test for admissions to all colleges affiliated to SNDT University all over the country. It is submitted that it is open to the State Government to consider applications for NOCs on case to case basis and in a given case the State Government may be justified in refusing to grant NOC if the proposed colleges does not have the required infrastructure or faculty or on any other relevant ground, but the State Government cannot be permitted to refuse to grant NOC only on the ground that the University to which affiliation is sought is outside the State of Gujarat. Reference is made to the provisions of Sections 105 of the Maharashtra Universities Act, 1994 SCA/9840/2008 5 JUDGMENT and similar provisions in the previous legislations on the subject. 5. On the other hand, Mr Sunit Shah, learned Government Pleader appearing for the State Government has opposed the petitions and made the following submissions :- The petitioner proposes to establish colleges for Library Science and Social Works in Sabarkantha district, which falls within the territorial jurisdiction of Shri Hemchandracharya North Gujarat University established under the North Gujarat University Act, 1986. Section 5 of the said Act read with Schedule to the Act provides that no college within the districts of Sabarkantha, Banaskantha and Mehsana (now Mehsana and Patan) can seek affiliation to any other University without the prior approval of the State Government and the North Gujarat University. Relying on the decisions in (2007) 6 SCC 35, (2005) 7 SCC 330 and (2005) 5 SCC 420, it is contended that the concept of territorial jurisdiction of a University is very much relevant. It is submitted that when the colleges proposed to be established by the petitioner – trust can be granted affiliation to the North Gujarat University within whose territorial jurisdiction the colleges are proposed to be established, the State Government would be justified in refusing to grant NOC for affiliation of the proposed colleges to SNDT Women's University located in Mumbai. It is submitted that with mushrooming of several colleges in the State, the State Government has found that a University like the SNDT Women's University situate in Mumbai cannot effectively regulate / monitor the colleges within the State of Gujarat. Such monitoring can be done effectively and efficiently only if the Colleges are affiliated to the local university within the State, within whose territorial jurisdiction, the colleges are proposed to be established. SCA/9840/2008 6 JUDGMENT 6. We have heard the learned counsel for the parties and given anxious consideration to the rival submission. Before dealing with the same, we may set out the relevant constitutional and statutory provisions and refer to the relevant decisions. 7. The relevant entries in the Seventh Schedule to the Constitution read as under :- SEVENTH SCHEDULE List I – Union List 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. List III – Concurrent List 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocations and technical training of labour. ------------------------ Section 105 in Chapter XIII of the Maharashtra Universities Act, 1994 reads as under :- CHAPTER XIII SPECIAL PROVISIONS FOR SHREEMATI NATHABAI DAMODAR THACKERSEY WOMEN'S UNIVERTIY 105 (1) In addition to the other provisions of this Act, and Statutes, the provisions set out in this section shall apply to the Shreemati Nathabai Damodar Thackersey Women's University. (2) The territorial limits, within which the powers conferred upon the university by this Act shall be exercised, shall comprise the State of Maharashtra : Provided that, the university may, subject to such conditions and restriction as it and the State Government may think fit to impose, admit any women's educational institution in any other territory to the privileges of the university, with the approval of the Government concerned. SCA/9840/2008 7 JUDGMENT (3) Any female student from any part of the State of Maharashtra or any other territory may register as a private student of the university or join correspondence course or any other external degree or diploma course of the university. (4) Any society, association or body in the State of Maharashtra seeking affiliation or recognition by the University to the college or institution started or conducted by it exclusively for women students need not seek the provision of any other university in the area of which the college or the institution, as the case may be, is to be or is located. ... ... ... ....” [emphasis supplied] The relevant provisions of the North Gujarat University Act, 1986 read as under:- 2. In this Act, unless the context otherwise require - (17) “University area” means the area specified in the Schedule i.e. Banaskantha District, Mehsana District and Sabarkantha District; 5. Jurisdiction and admission to privileges – (1) No educational institution situated within the University area shall, save with the sanction of the State Government and the University, be associated in any way with, or seek admission to any privileges of, any other University established by law. (2) ... ... .... ... ... ... ... ... .... (3) ... ... .... ... ... .... ... ... .... (4) Any educational institution in the State of Gujarat situate outside the University area may, subject to such conditions and restrictions as the University and State Government think fit to impose, be admitted to the privileges of the University. 6. University open to all irrespective of sex, religion, class, creed of opinion – (1) No person shall be excluded from any office of the University or from membership of any of its authorities or from admission to any degree, diploma or other academic distinction or course of study on the sole ground of sex, race, creed, caste, class, place of birth, religious belief or political or other opinion : SCA/9840/2008 8 JUDGMENT Provided that the University may, subject to the previous sanction of the State Government maintain, affiliate or recognize any college or institution exclusively for women, or reserve for women or for socially and educationally backward classes of citizens or for members of the Scheduled Castes and the Scheduled Tribunal, seats for the purposes of admission as students in any institution maintained by the University. AFFILIATION, RECOGNITION AND APPROVAL 35 (1) A college applying for an affiliation to the University shall send a letter of application to the Registrar, not later than 31st March of the year preceding the year in which the college is proposed to be started: ... ... ... ... ... ... ... (5) The Registrar shall submit the application and all proceedings, if any, of the Academic Council and the Executive Council relating thereto to the State Government which shall after such inquiry as may appear to it to be necessary, grant or refuse the application or any part thereof. (6) Where the application or any part thereof is granted, the order of the State Government shall specify the course of the instructions in respect of which the college is affiliated and where the application or any part thereof is refused, the grounds of such refusal shall be recorded. [emphasis supplied] 9. In State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 (hereinafter referred to as “the Sant Dnyaneshwar case), the Apex Court examined the provisions of National Council for Teacher Education Act, 1993 in the context of the following facts. The National Council for Teacher Education granted recognition to several institutions in Maharashtra for establishing colleges for teacher education. The Government of Maharashtra, however, refused to grant NOC on the ground that it had taken a policy decision in 2004 not to grant NOC for any teacher training institution for the academic year SCA/9840/2008 9 JUDGMENT 2005-06 and that, therefore, the petitioner – college shall not be granted any affiliation to any University within the State of Maharashtra. Since without the University affiliation, the course could not be commenced and since the admission process was in advance stage, the institutions filed writ petitions before the Bombay High Court. The State of Maharashtra also filed the writ petition challenging the grant of recognition by NCTE ignoring the policy decision of the State. The High Court allowed the writ petitions filed by the educational institutions and dismissed the writ petition of the State Government holding that the University and the State cannot take any action by overlooking the decision of the NCTE. The State of Maharashtra challenged the above decisions before the Apex Court. Dismissing the appeals of the State Government, the Apex Court held that the final authority with regard to teacher education was NCTE and its decision ought to be implemented by all authorities in light of the provisions of NCTE Act and the law laid down by the Apex Court. The Court noted the provisions of the NCTE Act and particularly its preamble, which reads as under :- The Preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher- education system and for matters connected therewith. In the aforesaid decision, the Apex court made the following observations in paragraphs 57 and 63 :- 57. It is thus clear that the Central Government has considered the subject of Secondary Education and Higher Education at the national level. The Act of 1993 also requires Parliament to consider Teacher Education System 'throughout the country'. NCTE, therefore, in our opinion, is expected to deal with SCA/9840/2008 10 JUDGMENT applications for establishing new B.Ed. colleges or allowing increase in intake capacity, keeping in view 1993 Act and planned and co-ordinated development of teacher-education system in the country. It is neither open to the State Government nor to a University to consider the local conditions or apply 'State policy' to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court. 63. In our opinion, the observations that the provisions of Sections 82 and 83 of the Maharashtra University Act are "null and void" could not be said to be correct. To us, it appears that what the High Court wanted to convey was that the provisions of Sections 82 and 83 would not apply to an institution covered by 1993 Act. As per the scheme of the Act, once recognition has been granted by NCTE under Section14(6) of the Act , every university ('examining body') is obliged to grant affiliation to such institution and sections 82 and 83 of the University Act do not apply to such cases. 10. In Jaya Gokul Education Trust vs. Commissioner & Secretary to Government High Education Department, (2000) 5 SCC 231, the appellant – trust submitted an application to the University of Kerala and to All India Council for Technical Education (AICTE) seeking to set up a self-financing engineering college. While inspection team of the University made a favourable recommendation for granting affiliation to the college of the appellant trust and AICTE also granted conditional approval, subject to fulfillment of certain conditions, the State Government refused to grant permission for establishing a college. The writ petition of the appellant – trust was allowed by learned Single Judge who directed the Government to reconsider its decision and also directed the University to consider the appellant's case for affiliation without reference to the State Government's order. However, a Division Bench of the High Court allowed the appeal of the State Government and dismissed the writ petition. The Supreme court allowed the appeal of the educational institution and held that the University could not impose any SCA/9840/2008 11 JUDGMENT conditions inconsistent with the AICTE Act or regulations and the conditions imposed by AICTE. Hence the procedure for obtaining affiliation and any conditions which can be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not in any event have sought for approval of the State Government which could only give its views to the University. The so- called policy of the State was not a ground for refusing approval. The State could not have any policy outside the AICTE Act and if it had a policy, it should have placed the same before AICTE and that too before the AICT granted the permission. The Apex Court restored the direction to the University to consider the application of the appellant for final affiliation and that too without reference to the order of the State Government. 11. In Prof. Yashpal vs. State of Chhatisgarh, (2005) 5 SCC 420, the Apex made the following observations on the status, powers, duties and functions of the UGC :- “33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co-ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained. 34. In order to achieve the aforesaid purpose, the Parliament has enacted the University Grants Commission Act. First para of the Statement of Objects and Reasons of the University Grants Commission Act, 1956 (for short "UGC Act") is illustrative and consequently it is being reproduced below : SCA/9840/2008 12 JUDGMENT "The Constitution of India vests Parliament with exclusive authority in regard to 'co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'. It is obvious that neither co-ordination nor determination of standards is possible unless the Central Government has some voice in the determination of standards of teaching and examination in Universities, both old and new. It is also necessary to ensure that the available resources are utilized to the best possible effect. The problem has become more acute recently on account of the tendency to multiply Universities. The need for a properly constituted Commission for determining and allocating to Universities funds made available by the Central Government has also become more urgent on this account. 35. In the second para it is said that the Commission will also have the power to recommend to any University the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such recommendation. The Commission will act as an expert body to advise the Central Government on problems connected with the co- ordination of facilities and maintenance of standards in Universities. 36. The preamble of the UGC Act says - an Act to make provision for the co-ordination and determination of standards in Universities and for that purpose to establish a University Grants Commission. Section 2(f) of this Act defines a University and it means 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 this Act. Clause 12 provides that 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 determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of its functions under the Act, the Commission may do all such acts enumerated in sub-sections (a) to (j) thereof. 37. It is important to note that in view of Section 22 of UGC Act, the right of conferring or granting degree can be exercised only by University or an institution deemed to be University under Section SCA/9840/2008 13 JUDGMENT 3 of the aforesaid Act or institution especially empowered by an Act of Parliament to confer or grant degrees. 12. In Kurmanchal Institute of Degree & Diploma & Ors. vs. Chancellor, MJP Rohilkhand University, (2007) 6 SCC 35 (paras 18 to 20), strongly relied upon by the learned Government Pleader, the Apex Court held that study centres recognized by a University cannot be permitted to be operated beyond the territorial area of the University. “Each University in the country which is recognized under the University Grants Commission Act must have their own territorial jurisdiction save and except for the Central Universities or specified in the legislative or parliamentary Act. ... ... A statutory authority, it is well known, must act within the four corners of the statute. A fortiori it has to operate within the boundaries of the territories within which it is to operate under the statute. Such territorial jurisdiction of the university must be maintained as otherwise chaos would be created.” 13. On a review of the above authorities, there can be no doubt about the settled legal principle that so far as co-ordination and determination of the standards in institutions for higher education are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution