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SCA/9840/2008 9 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 issued by the
State Government in the Education Department, the operative portion
of which reads as under :-
?SAs the universities
situated in the State are capable of giving affiliation to colleges
in adequate proportion, the State Government resolves not to grant
?SNo 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 ?SNo Objection
Certificate?? from the State Government. The trust accordingly
applied to the State Government in the Education Department on
19.6.2008 for ?SNo 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
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 ?Scoordination 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/ 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 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.
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.
(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) ?SUniversity 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 :
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 ?Sthe 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
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 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 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 :-
?S33. 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 :
“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 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. ?SEach 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 and the State has no power
to encroach upon the legislative power of Parliament in the State
level. Similarly, when the subject is covered by Entry 25 of List
III of the said Schedule, there is a concurrent power of Parliament
as well as State Legislatures and appropriate Act can be made by the
State Legislature subject to limitations and restrictions under the
Constitution. However, the controversy which is the subject matter
of the present petitions arises in a different context than the
factual backdrop and the legal framework in which the questions came
up for consideration before the Apex Court in Sant Dnyaneshwar case
and in Jaya Gokul case relied upon by the petitioner.
In
Sant Dnyaneshwar case, (2006) 9 SCC 1, recognition was granted by the
National Council of Teachers Education which is the only competent
body for granting such recognition under the NCTE Act, which gives
overriding effect to the powers of the National Council of Teachers
Education in the matter of grant of recognition. Similarly in the
case of Jaya Gokul Education Trust, (2000) 5 SCC 231, All India
Council of Technical Education (AICTE) is the competent apex
body upon which similar powers are conferred by the AICTE Act. The
Hon’ble Supreme Court has held in the aforesaid decisions that when
such apex professional body constituted under the relevant statute
grants recognition to an educational institution, the State
Government cannot exercise veto power by refusing to grant NOC for
educational institution.
14. In
the facts of these two petitions, however, the petitioner ?
institution is not covered by such a Central legislation. The
petitioners are seeking affiliation to SNDT University, Mumbai
established under the Maharashtra Universities Act, 1994. There is
no Central legislation establishing any national level apex body for
granting recognition to institutions in the fields of library science
and social work. Hence, the petitioner cannot claim parity with the
educational institutions which were petitioners before the Apex Court
in Sant Dnyaneshwar case (supra) and in Jaya Gokul case (supra).
The
petitioners’ cases are accordingly not examined by any such apex
technical body established under a statute nor is there any question
of examination of the petitioners’ cases by the University Grant
Commission which is established under the UGC Act for overseeing the
performance of the universities as such and for providing them
financial grants.
15. In
Kurmanchal Institute case (2007) 6 SCC 35, the territorial
jurisdiction of the respondent University was confined to seven
districts, but the appellant study centre situate in Nainital (not
falling in any of the said Districts, but in fact outside U.P) was
started with the permission of the Government of U.P. to run the
diploma and certificate courses of the University through distance
education mode. However, the Chancellor of the University disapproved
the same and directed that all the activities related to such
distance education programmes be closed immediately and the students
got enrolled for the programmes be permitted to participate only in
the correspondence courses. The Chancellor’s order was questioned
before the High Court. The petition was dismissed by the High Court
and in appeal filed by the study centre, the observations relied upon
by learned Government Pleader Mr Sunit Shah (quoted in para 12
hereinabove) were made by the Apex Court to ensure that the
territorial jurisdiction of the University must be maintained. On the
other hand, the statute under which the SNDT University, a statutory
University recognized by the University Grants Commission, is
established confers extra territorial jurisdiction on the University
subject to approval by the Government of State where the educational
institution is situate. Even while the provisions of Section 5 of
the North Gujarat University Act provide that an educational
institution situate in the Districts of Sabarkantha, Banaskantha and
Mehsana (Mehsana District now divided into Mehsana and Patan) cannot
be affiliated to a University other than the North Gujarat
University, without sanction of the State Government and the North
Gujarat University, these provisions cannot be read as conferring
absolute unbridled powers on the Government of Gujarat and the North
Gujarat University to refuse to grant NOC merely on the ground that
the University to which affiliation is sought is situate outside the
State of Gujarat. The Government of Gujarat will have to examine not
only the credentials of the University, but also the facts of each
case for the purpose of taking a decision whether or not to grant NOC
to an educational institution for affiliation to any other University
on its own merits and not by imposing the blanket ban upon
consideration of such application.
16. We
also find in the introductory part of the Government of Gujarat
Resolution dated 4.10.2007 that in principle the State Government
cannot have any objection if the educational institution desires to
start a college in the State with affiliation to a University situate
in another State, but the two factors which weighed with the State
Government for imposing a blanket ban on affiliation to a University
outside the State are (i) when such a college can be established with
affiliation to a University situate within the State and such
University within the State is ready and willing to give affiliation
to the proposed college, and (ii) on account of affiliation of a
college in Gujarat to a university outside the State, the effective
monitoring/regulation of the State Government with regard to
norms/standards of education, administration or fee structure cannot
be done and such monitoring can be done effectively and efficiently
if the college is affiliated to a university situate within the
State.
As
far as the first ground is concerned, the provisions of Section 5(1)
of the North Gujarat Act themselves do not contain any blanket ban
and all that they provide is that affiliation to a university outside
the territorial limits of the North Gujarat University can be sought
with the sanction of the State Government and the North Gujarat
University.
17. The
only other factor which weighed with the State Government for
imposing such a blanket ban is the difficulties likely to be faced by
the State Government in monitoring an educational institution within
the State of Gujarat after its affiliation to a University situate
outside the State. This apprehension is, prima facie, not without
any basis, because under the provisions of the North Gujarat
University Act, the University has only the power to recommend but
not to grant the affiliation, and that it is only the State
Government which is vested with the power to grant an institution
affiliation to the North Gujarat University under Section 35 of the
Act. Similar provisions are to be found in the the Saurashtra
University Act, the South Gujarat University Act, the Bhavnagar
University Act and the Gujarat University Act. While exercising the
powers under the aforesaid statutory provisions, the State Government
certainly exercises considerable powers for deciding upon the
suitability or otherwise of an educational institution for the
purpose of affiliation to the concerned University within the State.
We, therefore, appreciate the anxiety of the State Government that
the State Government may not be able to exercise such power when the
educational institution is affiliated to a University outside the
State.
But
the provisions of Section 105 of the Maharashtra Universities Act,
1994 themselves contemplate that the SNDT University can grant
affiliation to a college situate outside the State of Maharashtra
with the approval of the Government of the State in which the
proposed college is situate. This itself confers power on the
Government of Gujarat to consider on merits of each individual case
whether to grant No Objection Certificate to a college proposed to be
set up in the State of Gujarat for affiliation to the SNDT
University.
Moreover,
in the facts of these cases, the apprehension voiced in the
Government Resolution dated 4.10.2007 need not worry the State
Government as Mr Mitul Shelat, learned counsel for the SNDT
University as well as Mr YN Oza, learned counsel for the petitioners
have stated that their respective clients have no objection to the
Government of Gujarat examining whether the educational institutions
have adequate infrastructure, teaching faculties, administrative
machinery and have also no objection to the Government of Gujarat
regulating fee structure for the respective courses. The learned
counsel, however, state that since the SNDT University conducts an
All India Common Entrance Test for admissions to SNDT University and
colleges affiliated to it, the State Government will not be permitted
to have any say in the matter of admissions to the colleges
affiliated to SNDT University. We also record the statements of the
learned counsel for the SNDT university and the petitioners that the
powers of the State Government to do such monitoring are not confined
only to the stage of issuance of NOC and that if and when the State
Government finds that the concerned college commits breach of any of
the terms and conditions of the NOC or the State Government otherwise
thinks it fit on a rational ground, the State Government also has the
power to withdraw the NOC subsequently which would result into
adverse consequences for the concerned college in the matter of
continuance/renewal of the affiliation to the SNDT University.
18. We
accordingly allow these petitions and direct the State of Gujarat to
consider, within three weeks from today, the petitioners’
applications for NOC without being inhibited by the blanket ban
imposed by the Government Resolution dated 4.10.2007, but after
taking into consideration the above statements made by the learned
counsel for the SNDT University and the learned counsel for the
petitioners that it is open to the Government of Gujarat to examine
and monitor whether the educational institutions applying for NOC
have adequate infrastructure, teaching faculties, administrative
machinery and fee structure in consonance with the Government
policies which are applicable to other private unaided colleges
within the State of Gujarat.
[K.S.
RADHAKRISHNAN, C.J.]
[M.S.
SHAH, J.]
zakir/-
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