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CASE NO.: Appeal (civil)  7660 of 2002

PETITIONER: Bharati Vidyapeeth [Deemed University] & Ors.

RESPONDENT: State of Maharashtra & Anr.

DATE OF JUDGMENT: 26/02/2004

BENCH: S. RAJENDRA BABU & G.P  MATHUR.

JUDGMENT: J U D G M E N T

[With C.A. Nos. 5543-5544/94]

C.A. No. 7660/2002          Bharati Vidyapeeth, located in Pune, was established  as a society. Several  Colleges affiliated to Pune University  were run by the said Society.  It applied to the U.G.C. for  treating the society as a deemed university and the State  Government strongly recommended the case of appellants  to the U.O.I. for grant of the status of Deemed University.   The Central Government on advice of U.G.C. declared   various institutions of Bharati Vidyapeeth at Pune as   "Deemed  to be University" for the purpose of the U.G.C.  Act vide Notification dated 26.4.1996.  On 13.6.1996  U.G.C. issued office memorandum declaring Bharati  Vidyapeeth as a Deemed University in terms of Section 3  of the U.G.C. Act. When the matter stood thus, it appears that the  Bharati Vidyapeeth as deemed University allowed  admissions to be made in their respective medical,  engineering and dental colleges up to the academic year  1995-1996 under the stream of the Common Entrance  Test conducted by the State authority. Thereafter, they  decided to keep themselves outside the scope of the State  authority. At that stage, appellants herein filed a writ  petition before the High Court challenging the Admission  Rules to Medical, Engineering and Dental colleges for the  year 1996-97 whereby the colleges run by Bharati  Vidyapeeth were included in the admission proposed to be  controlled by the CET authority. The High Court after  considering various arguments of the learned counsel  appearing on either side dismissed the writ petition.  Hence, this appeal by special leave.  

This Court granted an interim order on 19.5.1997 to  the following effect which is continuing till today:

".....We are informed that the  examination process has already began  as early as February, 1997. In the larger  public interest, we are of the view that  the petitioner will conduct an All India  Entrance Test and will grant admission  strictly on the basis of the merit of the  candidates. Admission so granted will be  subject to the final orders, that will be

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passed by this Court."

The High Court in reaching the conclusion that the  petitioner (appellant herein) had not made out any case,   mainly adverted to Section 65 of the Maharasthra State  University Act and held  that the State can frame rules in  respect of admission of students and the manner in which  the admissions are to be made under those rules has also  been spelt out. Inasmuch as the institution with which we  are concerned did not fall under the Schedule to the  Maharashtra Act, the High Court took the view that the  Rules framed under Section 65 of the Maharasthra  Act  would not be attracted. However, the High Court placed  reliance upon Article 162 of the Constitution and held that  the rules, though framed under Section 65 of the  Maharashtra Act could as well be treated as framed in  exercise  of powers under Article 162 of the Constitution  and, therefore, stated that such power was available and  hence these Rules could be made applicable to the  appellants’ institutions. The argument addressed on behalf  of the petitioner before the High Court is that once the  appellant institution comes under the umbrella of deemed  university, it is no longer open to the State to exercise any  of its powers under Entry 25 of List III inasmuch as the  same are the powers exercised by the University Grants  Commission under the U.G.C. Act which has been enacted  in terms of Entry 66 of List I of the Constitution. It is in  this background that the matter falls for our consideration.

Shri Harish N. Salve, learned Senior Advocate  appearing for the appellant after developing history of the  law in relation to the Entries in the Constitution and how  they have been understood, specifically submitted that the  institutions in question are governed by the University  Grants Commission Act and the terms under which it had  been granted the status of deemed University as well as  the regulations framed and therefore, it is no longer open  to the State or University to impose Rules upon the  manner in which the admission could be made in the  appellant institution.

It is submitted that once it is held that the power is  available under Entry 66 of List I of the Constitution, the  power stood carved out under  Entry 25 of List III of the  Constitution. Thus a State would not have competence at  all to make such an enactment or exercise any power in  relation to those aspects covered under Entry 66 of  List I.  He further submitted that the view of the High  Court that  the State action fell under  Article 162 of the Constitution   in framing the relevant Rules, is  plainly impermissible for  the reason that the  State lacks legislative  competence  over those aspects  carved out by Entry 66 of List I. If the  State is not competent to make any legislation in that  regard, it will not have any Executive power to frame any  instruction or exercise  any power to frame Rules.

He further drew our attention to various decisions of  this Court as to the scope of  Entry 25 of List III and Entry  66 of List I. He submitted that the concept of coordination  and determination of standards of admission in institutions  will cover a situation  in which the admission is to be made  in the institutions  governed by the UGC Act as well.

While summing up, he stated that the State’s  competence in regard to a deemed university with respect

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to higher education, such as medical, engineering and  dental is completely excluded and a university established  under the Central enactment falls outside the scope of  Entry 25 of List III. He also submitted that the Union law  prevails over the State law to the extent of  overlapping.  Therefore, it is contended that the action of the State in  this regard is totally ultra vires the Constitution.  

In answer, the learned counsel for the State  submitted that the institutions in the present case prior to  1996 had been part of the Common Entrance Test  conducted by the State authority and admissions were  made on that basis and it will not be correct to state that  the entire process of admission is relatable to and  governed by Entry 66 of List 1 and that there are still  certain facets even in cases of institutions governed by  Entry 66 List 1 to which appropriate legislation can be  made within the scope of Entry 25 of List III. He also  pointed out that the grant of status of deemed university  on the institutions in question is only for  purposes of the  UGC Act. Therefore, he argued that the deemed  universities cannot be given any higher status than what  has been considered under the Act. It is only for certain  purposes status has been given. He, therefore, submitted  that though he does not subscribe to the reasoning of the  High Court, he will maintain that the State Government  had sufficient powers to impose  necessary rules upon a  deemed University.

In order to appreciate the various contentions put  forth, we have to first examine the scope of Entry 66 of  List I. which reads:-  "Co-ordination and determination of  standards in institutions for higher  education or research and scientific and  technical institutions".  

The expression ’coordination’ has been explained by  this Court in more than one decision. Firstly in the  Gujarat University, Ahmedabad Vs. Krishna  Ranganath Mudholkar and Ors., 1963 Supp.(1) SCR  112 and recently in the State of T.N. & Anr. Vs.  Adhiyaman Educations & Research Institute & Ors.,  (1995) 4 SCC 104. In these two decisions it is stated that  the expression ’coordination’ used in Entry 66 of List I of  the Seventh Schedule to the Constitution does not merely  mean evaluation. It means harmonisation with a view to  forge a uniform pattern for a concerted action according to  a certain design, scheme or plan of development. It,  therefore, includes action not only for removal of  disparities in standards but also for preventing the  occurrence of such disparities. It will include power to do  all things, which are necessary to prevent what would  make ’coordination’ either impossible or difficult. This  power is absolute and unconditional and in the absence of  any valid compelling reasons, it must be given its full  effect according to its plain and express intention.

So far as standard of education is concerned, this  Court in Dr. Preeti Srivastava vs. State of M.P. & Ors.,  1999(7) SCC 120,  has explained that the process of  admission  falls within the scope of determining standards  and held as follows :- "It would not be correct to say that the  norms for admission have no connection with

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the standard of education, or that the rules  for admission are covered only by Entry 25 of  List III.  Norms of admission can have a  direct impact on the standards of education.   Of course,  there can be rules for admission  which are consistent with or do not affect  adversely the standards of education  prescribed by the Union in exercise of powers  under Entry 66 of List I.   For example,  a  State may, for admission to the postgraduate  medical courses, lay down qualifications in  addition to those prescribed under Entry 66  of List I. This would be consistent with  promoting higher standards for admission to  the higher educational courses. But any  lowering of the norms laid down can and  does have an adverse effect on the standards  of education in the institutes of higher  education."    

After specifically adverting to the decisions in State  of M.P. & Anr. Vs. Kumari Nivedita Jain & Ors. (1982)  1 SCR 759 and Ajay Kumar Singh & Ors. Vs. State of  Bihar & Ors., (1994) 4 SCC 401, this Court disagreed  with the proposition that standards come into picture after  admissions are made and held as follows:-   "\005..It is the result of a sum total of all the  inputs  -  calibre of students, calibre of  teachers, teaching facilities, hospital  facilities, standard of examinations etc.  that  will guarantee proper standards at the stage  of exit. We, therefore,  disagree with the  reasoning and conclusion in Ajay Kumar  Singh  v.  State of Bihar, 1994 (4) SCC 401,   and Post Graduate Institute of Medical  Education & Research   v.  K.L. Narasimhan,  1997 (6)  SCC 282."

        It was also held that the concept of prescribing  standards would include the process of admission.  Hence,  selection and admission cannot be compartmentalized but  it is one single process.

The High Court has also adverted to the decisions in  Kumari Nivedita Jain’s case (Supra) and Ajay Kumar  Singh’s case (Supra) which stood overruled in Preeti  Srivastava’s case (Supra) to state that admission is one of  the areas which will come after selections are made and,  therefore, in that area the Government can play certain  role and in this context in the absence of appropriate  rules, rules will have to be framed and such rules have  been framed by the  Government,  such rules have been  framed though purporting to be under  Section 65 of the  Mahrasthra Act, would be applicable to institutions of the  appellant.   It is now settled  position in law that  within the  concepts of coordination and  determination of standards  in institutions  for higher education or research and  scientific and technical institutions, the entire gamut of  admission will fall. Therefore if any aspect of admission of  students in colleges would fall within Entry 66 and it  necessarily stands excluded as has been held in the  Gujarat University’s case (Supra).   After examining the

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power of the State to prescribe medium of instruction in  institutions for higher education it is stated in that decision  as follows:

" Item 25 of the Concurrent List confers  power upon the Union Parliament and  the State Legislatures to enact  legislation with respect to "vocational  and technical training of labour". It is  manifest that the extensive power  vested in the Provincial Legislature to  legislate with respect to higher,  scientific and technical education and  vocational and technical training of  labour, under the Government of India  Act is under the Constitution controlled  by the five items in List I and List III  mentioned in item 11 of List II. Item 63  to 66 of List I are carved out of the  subject of education and in respect of  these items the power to legislate is  vested exclusively in the Parliament".

If the power to legislate in regard to those aspects  are entirely carved out of the subject of education and  vested in Parliament even at a time when ’Education’ fell  under List II, we find no reason now not to accept the  arguments advanced on behalf of the appellant  that once  an institution  comes within the scope of Entry 66 of List I,  it falls outside the control of the provisions of Entry 25 of  List III.  

Under Section 3 of the Act, deemed University status  will be given to those institutions that for historical  reasons or for any other circumstances are not Universities  and yet are doing work of a high standard in specialised  academic field compared to a University and that granting  of a University status would enable them to further  contribute to the course of higher education which would  mutually enrich the institution and the University system.   Guidelines for considering proposals for declaring an  institution as deemed to be University were also issued by  the UGC.  Under the said guidelines aspects relating to  admission was specifically entrusted with the UGC and  admission could be made only through a common  entrance test on All-India basis.  Such an exercise was  intended to maintain a uniform standard and level of  excellence.  As we have pointed out, admission plays a  crucial role in maintaining of the high quality of education.   And for the proper maintenance of academic excellence,  as intended by the UGC Act, admissions to deemed  University has to be made under the control of UGC.   This  further goes to show that admission procedure to a  deemed to be University is fully occupied by Entry 66 of  List I and the State cannot exercise any powers over  admission procedure.

Therefore, the State could not have enacted any  legislation in that regard. If that is so, neither in exercise  of executive power under Article 162 of the Constitution  which extends only to the extent of legislative power nor  in respect of power arising under the Maharashtra State  Universities Act, such rules could have been prescribed.   To the extent the High Court holds to the contrary, we set  aside the order of the High Court.

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At this stage we must strike a note of caution in  regard to institutions which are exclusively owned by the  Government and in respect of institutions which stand  affiliated to the University or in respect of institutions  to  which either affiliation or grant is made. Such institutions   may be controlled to an extent by the State in regard to  admission as a condition of affiliation or grant or owner of  the institutions. But those conditions, again if they are in   respect of the institutions of higher education must apply  the standard prescribed by the statutory authorities such  as U.G.C., Medical Council, Dental Council, AICTE,  governed by Entry 66 of List I of the Constitution.

Though arguments have been advanced before us  that even if some area is covered under Entry 25 in  relation to admission, inasmuch as the power has been  exercised under Entry 66 which in pith and substance falls  within that scope the State legislation to that extent has to  yield to Central legislation.   In this case it is unnecessary  to examine this aspect of the matter as the institution in  question entirely falls within the scope of the U.G.C. Act.    UGC has prescribed the norms of admission also which  include Fees that can be collected from students and  specifically debar collection of Capitation fee.  The  university or the State Government has no role to play  either in the matter of recognition, affiliation or making  any financial grants to exercise powers either as condition  thereto or in exercise of Entry 25 of List II.

However, we may advert to the various provisions of  the U.G.C. Act. The  Act provides for various aspects which  would be looked after. Section 12 relates to Powers and  Functions of the University Grants Commission under  which 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  for the determination and maintenance of standards of  teaching, examination and research in universities and for  the purpose of performing its functions under the Act. It  may have other powers, including power to establish, in  accordance with the regulations made under the Act,  institutions for providing common facilities, services and  programmes for a group of universities or for the  universities in general and maintain such institutions or  provide for their maintenance by allocating and disbursing  out of the Fund of the Commission such grants as the  Commission may deem necessary.

The Commission is also authorised to frame  regulations under Section 26 of the UGC Act. Section  26(1)(f) in particular defines the minimum standards of  instruction for the grant of any degree by any university  and regulating the maintenance of standards and the co- ordination of work or facilities in universities and to  regulate the establishment of institutions referred to in  clause (ccc) of Section 12 and other matters relating to  such institutions.  It also provides for  fees to be charged  and scales of fees in accordance with which fees may be  charged. It is also empowered under Section 25 to frame  rules for carrying out the purposes of the Act in general  and in particular any function that may be performed  under Section 12 and additional functions which may be  performed by the Commission under clause (j) of the Act.

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Learned counsel appearing for the State very  strenuously urged that the U.G.C. Act is only for the  purpose of making grants to various institutions governed  by and it was not an authority which would create a  university and give a special status to it so as to keep it  out of the control of the University or the State where it is  located. This argument ignores the provisions of the  enactment and particularly those to which we have  adverted to just now, for such institutions  are recognised  or granted deemed status for the maintenance of the  standards in the institutions and for coordinating the  teaching in universities which is a higher purpose than  merely giving grants and with that object, the enactment  is made. We do not think it could be confined only to  making of grants as has been contended by the  respondents. This argument, therefore, needs to be  rejected.

Shri Lalit learned counsel for the State drew our  attention to the two decisions of this Court in T.M.A.Pai  Foundation & Ors. Vs. State of Karnataka & Ors.,  (2002) 8 SCC 481 and Islamic Academy of Education &  Anr. Vs. State of Karnataka & Ors., (2003) 6 SCC 697  to contend that in these two decisions certain norms have  been laid down in regard to admissions and those norms  are applicable even in respect of deemed universities.   The  observations made in those decisions are only in the  context in which the decisions were rendered.  There was  no argument or consideration of the competing  enactments whether as to which authority is empowered  to make admissions or in what manner.  All that was  stated was the nature of control that a State can exercise  in respect to educational institutions which impart different  kind of education and no more.  Therefore, the  observations made therein can have no relevance or  application.

He further highlighted that these institutions   originally started in the State of Maharashtra to cater to  the local needs and therefore now if it is being given  deemed status it will no longer serve the local needs, such  need having been recognized by the Government by  granting essentiality certificate.  It would not be  appropriate for the State to contend that even though the  institution has now attained the deemed university status  it is not beyond the clutches of the State in the matter of  admissions of the students to such colleges as before  granting of the deemed university status, the State was  indeed consulted and the State conveyed its strong  recommendation for grant of such status. Particularly  when such status has been granted after consulting the  Government concerned, we do not think that such  argument on the basis of local needs should be accepted.  Faced with this position, Learned counsel, of course,  stated that the problem posed by him may have to be  attended to by the concerned authority.

We, accordingly, allow this appeal, set aside the  order made by the High Court and allow the writ petition  filed by the appellants to the extent of restraining the  respondents to enforce their instructions for bringing the  institutions of the appellants within the stream of the  Common Entrance Test Examination.

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C.A.Nos. 5543-5544/1994          

These appeals arise out of an order made by the High  Court in two writ petitions filed before it by respondent  No.1. The appellant enacted the Karnataka Educational  Institutions (Prohibition of Capitation Fee) Act, 1984 and  issued a notification on 16.9.1993 by which the Rule for  selection of candidates for admission to Engineering,  Medical, Dental, Pharmacy and Nursing Courses were  amended and thereby the institutions of respondent No.1  were specifically brought within scope of the said  enactment. That action of State was challenged in the  aforesaid writ petitions. On the arguments raised before  the Court, the High Court formulated two questions as  follows:

(1) Whether the State has legislative competence to  extend the provisions of the act to the petitioner  Institution(which is deemed to be an University for the  purposes of the "University Grants Commission Act, 1956)  by the impugned notification issued under Section 2(c) of  the Act? And

(ii) Whether the said notification is ultravires of  Section 2(c) of the Act itself?

On the first question, the High Court examined  various provisions of the enactment such as the University  Grants Commission Act, 1956 (referred to as the "U.G.C.  Act") and the State Act which was under challenge before  it bearing in mind the scope of Entry 66 of List I and Entry  25 of List III of the Seventh Schedule to the Constitution.   Thereafter, adverting to  various decisions of this Court, it  concluded that since specified guidelines and provisions   pertaining to all relevant aspects  for the purpose of  performing different functions, including fixation of the  scale of fee, and other matters are provided under the  UGC Act, it is difficult to hold that the Act  under challenge  and the Rules framed thereunder  can be made applicable  to the petitioner(respondent No. 1 herein).

Thereafter, the High Court adverted to the decisions  of this Court in Kumari Nivedita Jain’s case and  Ajay  Kumar Singh’s case.  The High Court held that the said  decisions were not attracted to the instant case wherein  the question for consideration is  concerning a Deemed  University declared as such by the Central Government to  be regulated under the provisions of the UGC Act; that the  Regulations and guidelines subject to which the Deemed  University status is granted  to the petitioner(respondent  No. 1 herein) would, therefore, cover all the relevant  functions to be performed by the Deemed University,  including the matters which are now sought to be  regulated by the State under the Act and the Rules by  including the Deemed University within the definition of  the term "Educational Institutions". The view taken by the High Court is also consistent  with the view expressed by this Court in Dr. Preeti  Srivastava’s case (supra) and by us in C.A.No.  7660/2002 - Bharati Vidyapeeth (Deemed University) &  Ors. Vs. State of Mahrashtra & Anr. and, therefore, all the  arguments addressed by Shri Sanjay R. Hegde to  the  contrary stand rejected.   

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Therefore, we find no merit in these appeals and are  dismissed.