CASE NO.:
Special Leave Petition (civil) 10506 of 2005
PETITIONER:
Rai University
RESPONDENT:
State of Chhattisgarh & Ors.
DATE OF JUDGMENT: 07/09/2005
BENCH:
CJI R.C. Lahoti,G. P. Mathur & P.K. Balasubramanyan
JUDGMENT:
JUDGMENT
With
Writ Petition (Civil) No.267 of 2005,
With
IAs No.11-12, 8, 9, 14, 15, 16, 17, 18, 19 and 22 of 2005
In
Writ Petition (Civil) No.19 of 2004
And
Special Leave Petition (Civil) No.16520 of 2005.
G.P. MATHUR, J.
Special Leave Petition (Civil) No. 10506 of 2005
1. This Special Leave Petition has been preferred against the judgment
and order dated 26.4.2005 of High Court of Chhattisgarh by which Writ
Petition No.1506 of 2005 filed by the petitioner, Rai University, was
dismissed.
2. The provisions of The Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short "the Act") were
challenged by Prof. Yashpal by filing a writ petition under Article 32 of the
Constitution in this Court. The writ petition was allowed by this Court on
11.2.2005 and the judgment delivered is reported in JT 2005 (2) SC 165
(Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors.). Paragraphs 45 and
46 of the reports, which have a bearing on the controversy in hand, are
reproduced hereinbelow :
"45. As a consequence of the discussion made and the
findings recorded that the provisions of Sections 5 and 6 of the
Act are ultra vires and the Gazette Notifications notifying the
Universities are liable to be quashed, all such Universities shall
cease to exist. Shri Amarendra Sharan, learned Additional
Solicitor General has submitted that the UGC had conducted an
inquiry and it was found that most of the Universities were non-
existent, but the report was not placed before the Court as the
complete exercise had not been done. Learned counsel for the
Universities have seriously disputed this fact and have
submitted that the Universities are functioning. We have not
gone into this question as it is purely factual. In order to protect
the interest of the students who may be actually studying in the
institutions established by such private Universities, it is
directed that the State Government may take appropriate
measures to have such institutions affiliated to the already
existing State Universities in Chhattisgarh. We are issuing this
direction keeping in mind the interest of the students and also
Sections 33 and 34 of the Act, which contemplate dissolution of
the sponsoring body and liquidation of a University whereunder
responsibility has to be assumed by the State Government. It
is, however, made clear that the benefit of affiliation of an
institution shall be extended only if it fulfills the requisite
norms and standards laid down for such purpose and not to
every kind of institution. Regarding technical, medical or
dental colleges, etc. affiliation may be accorded if they have
been established after fulfilling the prescribed criteria laid down
by the All India Council of Technical Education, Medical
Council of India, Dental Council of India or any other statutory
authority and with their approval or sanction as prescribed by
law.
46. In view of the discussions made above, Writ Petition (C)
No.19 of 2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh &
Ors.) and Writ Petition (C) No.565 of 2003 (Gopalji Agarwal
Vs. Union of India & Ors.) are allowed and provisions of
Section 5 and 6 of the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002
are declared to be ultra vires and are struck down. As a
consequence of such declaration, all notifications issued by the
State Government in the Gazette in the purported exercise of
power under Section 5 of the aforesaid Act notifying the
Universities (including respondent nos.3 to 94) are quashed and
such Universities shall cease to exist. If any institutions have
been established by such Universities, steps may be taken for
their affiliation to already existing State Universities in
accordance with the direction contained in paragraph 45 above.
Parties would be at liberty to approach the High Court if any
dispute arises in implementation of this direction. All Writ
Petitions, Civil Appeals and Transferred Cases filed by the
private Universities are dismissed."
4. Thereafter, the State of Chhattisgarh made Statute No.27(A) in
accordance with the provisions of Section 36 of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973. Clause (5) of Statute 27(A) of the
Statute reads as under :
"Notwithstanding anything contained in the Statutes,
Ordinances and Regulations made by any of the Existing State
University (ESU) under the provisions of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973 (No.22 of 1973), an Interim
Institution will be admitted to the privileges of the ESU on the
basis of the territorial jurisdiction of ESU for affiliation, as
specified in Second Schedule of the above said Act on
application of the Sponsoring Body of the Interim Institution
and the same shall be withdrawn thereof in the manner in the
paras mentioned hereinafter."
5. Rai University, which had been established under the provisions of
the Act, filed the writ petition before the Chhattisgarh High Court
challenging the provisions of Statute 27(A)(5) on the grounds, inter alia, that
the said University had established 19 study centres in various places in the
country like Pathankot, Delhi, Pune, Bangalore, Kochi, Mumbai, etc. and in
view of the aforesaid Statute, which lays emphasis on the territorial
jurisdiction of the university, the said study centres cannot get the advantage
of affiliation to a university in Chhattisgarh. The writ petition was dismissed
by the order dated 26.4.2005 which is under challenge in the present special
leave petition.
6. Learned counsel for the petitioner has submitted that in paragraphs 45
and 46 of the judgment rendered in the case of Prof. Yashpal (supra), this
Court had protected the interest of the students who were studying in the
institutions established by the private universities and as large number of
students were studying in various study centres of Rai University, which are
outside the State of Chhattisgarh, they cannot get affiliation to a State
university in Chhattisgarh. The submission is that all the study centres of
erstwhile private university should get the facility of affiliation to a State
university in Chhattisgarh.
7. In our opinion, the contention raised cannot be accepted. Sub-section
(1) of Section 7 of Chhattisgarh Vishwavidyalaya Adhiniyam, 1973 reads as
under :
"7(1) Save as otherwise provided in this Act, the powers
conferred on the University by or under this Act shall not
extend beyond the limits of the territorial jurisdiction specified
in the Second Schedule from time to time.
Provided that the State Government may authorize the
University to associate or to admit to any of its privileges
colleges situated within the state outside the aforesaid limits in
accordance with the provisions of this Act and the Statutes
made thereunder.
Provided further that where the University provides for
instruction through correspondence nothing contained in this
section shall be construed to debar the University from
admitting to such course of instructions students residing
outside the aforesaid limits.
Provided also that for imparting Oriental Sanskrit
education any Sanskrit College imparting Oriental Sanskrit
education in Madhya Pradesh shall be affiliated either to Pt.
Ravishankar Shukla University, Raipur or any other University
which the State Government may notify."
8. The Second Schedule to the Act gives the territorial jurisdiction of Pt.
Ravishankar Shukla Vishwavidyalaya, Raipur, and Guru Ghasidas
Vishwavidyalaya, Bilaspur, which are the two State universities functioning
in Chhattisgarh. The territorial jurisdiction of these universities is confined
to districts which are within the State of Chhattisgarh. In view of this clear
provision of the Adhiniyam, no statute can be made which may permit
affiliation of any institution or college to a State university in Chhattisgarh if
the said institution or college is situate outside the State of Chhattisgarh.
The validity of the impugned statute, therefore, cannot be assailed on the
ground urged by learned counsel for the petitioner.
9. Learned counsel for the petitioner has submitted that if the study
centres make an application seeking affiliation to a university which has
territorial jurisdiction over the place where the study centre is situate, the
same may not be granted in view of the direction given by this Court in
paragraph 45 of the judgment which has been reproduced above and in this
connection he has referred to the following sentence occurring therein :
"In order to protect the interest of the students who may be
actually studying in the institutions established by such private
Universities, it is directed that the State Government may take
appropriate measures to have such institutions affiliated to the
already existing State Universities in Chhattisgarh."
10. At the time of hearing of the writ petition filed by Prof. Yashpal, it
was not brought to the notice of the Court that the private universities had
established large number of study centres at various places all over the
country. We, therefore, consider it proper to clarify that while making the
aforesaid observation, it was not meant that affiliation must necessarily be
sought only with an already existing State university in Chhattisgarh. The
institutions of the erstwhile private universities, if otherwise eligible, may
apply and seek affiliation with any other university which has jurisdiction
over the area where the institution is functioning and is empowered under
the relevant Rules and Regulations and other provisions of law applicable to
the said university to grant affiliation. The decision on the application may
be taken expeditiously in the interest of student community and there should
be no prolonged uncertainty about their future.
11. It may also be mentioned here that Prof. P.C. Upadhyay, Chairman of
Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory Commission had
sent a letter on 23rd March, 2005 to the sponsoring body of an erstwhile
university, wherein the following decision of the Government of
Chhattisgarh was communicated :
"As you are the Chairman of the Sponsoring Body of one of the
Universities mentioned above, it is our duty to inform you, that
in case you are running any off campus/study centre in or
around Delhi in the NCR, you may immediately approach the
Guru Gobind Singh Indraprastha University, Delhi for granting
affiliation, to such off campus/study centre, so as to ensure that
the students are no longer subjected to avoidable anxiety and
uncertainty.
Further, please note that for completion of any formalities by
UGC, AICTE, etc. you must start action likewise.
Also, for other off campuses or study centres outside
Chhattisgarh for grant of affiliation, you may approach the
University of the State where they are located, in the light of the
Supreme Court judgment as well as the statement of the HRD
Minister. In case of any difficulties, please send us the
communication for taking up the matter with UGC and related
bodies."
The study centres of erstwhile Rai University which are outside the
State of Chhattisgarh may take appropriate steps for their affiliation in the
light of the clarification made above and the letter dated 23rd March, 2005 of
the Chairman of Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory
Commission.
12. We, therefore, find no merit in this special leave petition, which is
hereby dismissed. All the IAs moved in this petition are also dismissed.
Special Leave Petition (Civil) No. 16520 of 2005
Erstwhile Mewar University ... Petitioner
Versus
State of Chhattisgarh & Ors. ... Respondents
This special leave petition has been filed challenging the judgment
and order dated 22.7.2005 of the High Court of Chhattisgarh by which Writ
Petition No.2954 of 2005 filed by erstwhile Mewar University has been
dismissed. The petitioner has challenged the vires of clause 5 of Statute
No.27(A) enacted by the State of Chhattisgarh in accordance with the
provisions of Section 36 of the Chhattisgarh Vishwavidyalaya Adhiniyam
1973.
For the reasons given in Special Leave Petition (Civil) No.10506 of
2005, this special leave petition is dismissed. All the IAs moved in this
petition are also dismissed.
WRIT PETITION (CIVIL) NO.19 OF 2004
Prof. Yashpal & Anr. Petitioners
Versus
State of Chhattisgarh & Ors. Respondents
I.A. Nos.11-12 of 2005
These applications have been moved seeking clarification of the
direction contained in paragraphs 45 and 46 of the judgment and for giving
appropriate directions in order to protect the students studying in study
centres established outside the State of Chhattisgarh. The necessary
clarification has been given in Special Leave Petition (Civil) No.10506 of
2005 and no further clarification is required. The IAs are disposed of
accordingly.
I.A. No.8 of 2005
The prayer made in this application is that the State Government may
be directed to take appropriate steps to notify certain institutions as
universities keeping in view the fact that such institutions have already been
inspected by the UGC. Since the Act itself has been declared to be ultra
vires and a direction has been issued by this Court in Writ Petition (Civil)
No.19 of 2004 that all universities shall cease to exist, the prayer made in
this application cannot be granted. It is accordingly rejected.
I.A. No.14 of 2005
This application has been moved by erstwhile Mewar University,
which was a private university. The applicant claims that it is running two
institutes; one in Ghaziabad (State of U.P.) and the other at Chittorgarh
(State of Rajasthan). The principal prayer made is that a direction be issued
to the State Government of Chhattisgarh to ensure the affiliation of the
students, who are studying in the aforesaid institutes. Having regard to the
fact that the institutes are located outside the State of Chhattisgarh, no such
direction can be issued to the State of Chhattisgarh. It is open to the
institutes, if otherwise eligible, to seek affiliation with any other university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation. If the applicant feels aggrieved by the decision taken by the
University or any other authority, it is open to it to challenge the same before
the appropriate forum in accordance with law. The application is accordingly
rejected.
I.A. No.22 of 2005
This application has been moved by 11 students who claim to be
studying in Ghaziabad and Chittorgarh institutes of erstwhile Mewar
Univeristy. The prayer made is that a direction be issued to affiliate the
institutes to a university in the State of Chhattisgarh. For the reasons
already given in Special Leave Petition (Civil) No.10506 of 2005, such a
prayer cannot be granted.
In the alternative, a prayer has been made that a direction be issued to
affiliate the institutes with Chaudhary Charan Singh University, Meerut
and/or U.P. Technical University, Lucknow or Mohan Lal Sukhadia
University, Udaipur. The applicants were not party to the writ petition. It is
for the institutes to make appropriate application to the concerned university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation. The application is accordingly rejected.
I.A. No.15 of 2005
This application has been moved by erstwhile Jaipuria University
(Respondent No.42 to the writ petition) praying that AICTE and UP
Technical University be directed to grant one time approval and affiliation
for the 22 students who have been pursuing a full time regular course of
study of the prescribed syllabus for MBA, meeting the standards set down
by the AICTE and have also appeared in the 1st year examination conducted
by the U.P. Technical University. Learned counsel has submitted that
Jaipuria University is running an institute for imparting MBA degree in
Noida, which is affiliated to U.P. Technical University and 60 students are
studying there. The notification establishing the Jaipuria University was
issued on 6.9.2003 and thereafter 22 students were admitted for MBA course
in the said university. After the decision in the case of Prof. Yashpal
(supra), the university ceased to exist. As a result, the said 22 students are
facing problem regarding continuance of their M.B.A. course. The record
shows that an application was given to the Vice-Chancellor, U.P. Technical
University seeking affiliation regarding those 22 students. However, vide
letter dated 19.6.2005 of the Registrar of U.P. Technical University, it was
informed that the affiliation was not found justifiable by the Chancellor of
the university. In our opinion, the relief sought cannot be granted in an
application moved in an already decided writ petition on entirely new facts
pleaded for the first time. The application is accordingly rejected.
I.A. No.18 of 2005
This application has been moved by a student who claims to have
been studying in the Mumbai Campus of the erstwhile Rai University and
the prayer made is that a direction be given to either affiliate the Off Campus
to Chhattisgarh University or to Mumbai University or to any other
university in Maharashtra. For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, it is not possible to grant the first prayer regarding
affiliation with a University in Chhattisgarh.
Learned counsel has submitted that there are two enactments, namely,
Maharashtra Educational Institutions (Transfer of Management) Act, 1971
and Maharashtra Educational Institutions (Management) Act, 1976, which
empower the State Government to appoint Administrator over an
educational institution and having regard to the fact that Rai University has
ceased to exist, some direction should be issued to the Government of
Maharashtra to protect the interest of the students. In our opinion, it will
not be proper for us to issue any direction as prayed for by the learned
counsel for the applicant as the State of Maharashtra was not a party to the
writ petition. It is always open to the applicant or any other student to
approach the State Government for appropriate relief. The application is
accordingly rejected.
I.A. No.19 of 2005
This application has been moved by certain students of erstwhile
ICFAI University (respondent no.73 to the writ petition), who claim to have
been studying in a five-year law course. The first prayer made in the
application is that a clarification may be issued that the direction contained
in paragraphs 45 and 46 of the judgment would apply to all the existing
students who are studying in the Off Campus law school of erstwhile ICFAI
University at Hyderabad. For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, such a prayer cannot be granted.
In the alternative, learned counsel has submitted that the law school of
erstwhile ICFAI University may be affiliated to any university in Andhra
Pradesh. It is not possible to issue such a direction as the State of Andhra
Pradesh or any university in the said State were not even a party to the writ
petition. It is always open to the law school to move an appropriate
application seeking affiliation to a University which has jurisdiction and is
empowered under the relevant Rules and Regulations and other provisions
of law applicable to the said university. The application is accordingly
dismissed.
I.A. Nos. 9, 16 and 17 of 2005
In view of the orders passed in the aforesaid IAs, no order needs to be
passed in these IAs. The same are accordingly disposed of.
Civil Writ Petition No.267 of 2005
Divya Tiwari & Ors. ... Petitioners
Versus
State of Chhattisgarh & Ors. ... Respondents
This petition under Article 32 of the Constitution of India has been
filed by three petitioners who claim to be students of an Off Campus of an
erstwhile private university known as SRI University, which is situate in
Akbarpur, District Ambedkar Nagar in the State of U.P. The prayer made
in the writ petition is that a writ of mandamus be issued directing the
University and the Off Campus to hold their examination.
In view of the decision in the case of Prof. Yashpal (supra), the
University has ceased to exist and the Off Campus being outside the State of
Chhattisgarh, no relief can be granted. The writ petition is accordingly
dismissed.
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