MATHUR, J. - (1.) PETITIONERS Prakash Chaturvedi and Bhopal Chand Mehta by way of instant writ petition under the label of "Public Interest Litigation" have challenged the validity of Rajasthan Private Universities Act. 2005, hereinafter referred to as "the Rajasthan Act". It is submitted that the Act of 2005 is liable to be quashed in view of the judgment of the Hon'ble Supreme Court rendered in Professor Yashpal vs. State of Chattisgarh (2005(5) SCC 420), which more or less fully applies to the instant case. It is averred that in Prof Yashpal's case, Chhatisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Adhiniyam 2002, hereinafter referred-to as "the Chhatisgarh Act", has been struck down by the Hon'ble Supreme Court. The Rajasthan Act, for all practical purposes except some chances, is substantially similar to the Chhatisgarh Act. PETITIONERS have also challenged the validity of the impugned Act of 2005 on the ground of non-competence of Rajasthan State Legislative Assembly. It is submitted that the State Legislature appears to have enacted the impugned Act of 2005 under the impression that the matter falls within the domain of Entry 25 of List-III of Schedule 7 of the Constitution of India. According to the petitioners, the Entry 25 of List-III can be operative only after University has been established and has started functioning so as to enable the regulatory bodies to decide as to whether University is fit to act as such and the status of State Universities can be given by the UGC in exercise of powers conferred upon it by Section 3 of the UGC Act.
(2.) ON the other hand, it is submitted that the impugned Act has been enacted considering the apparent need to boost up higher education scenario in the State by introducing private parties especially through establishment of Self Financed Private Institutions. It is submitted that His Excellency the Governor of Rajasthan made and promulgated the Rajasthan Self financed Private Universities Ordinance, 2004- on 18.09.2004. The Apex Court delivered the judgment in Prof. Yashpal's case (supra) on 11.02.2005, whereby the Chattisgarh Act was struck down. The Rajasthan Self Financed Universities Bill was placed before the Rajasthan Legislative Assembly on 21.02.2005. ON the basis of the resolution mooted by the Hon'ble Minister, the Incharge of the Higher Education, the Rajasthan Legislative Assembly directed the Select committee to examine the Bill keeping in view the decision of the Apex Court in Prof. Yashpal's case (supra). Accordingly, the changes were made keeping in view the lacunaes pointed out in Chattisgarh Act and the observations made. Thus, the Select Committee recommended modifications in the Act to bring the Bill strictly in accordance with the law laid down by the Apex Court in Prof Yashpal's case (supra). Learned Counsel has pointed out various provisions under the impugned Act comparing with the Chattisgarh Act to show that the impugned Act does not suffer from the defects pointed out in the Chattisgarh Act. Issue Involved - Need to Revitalize Higher Education: The issue involved in the instant petition is of contemporary significance, as it pertains to "Higher Education" which in recent times, has undergone enormous change. Since the formation of Universities around 1500 years ago, the higher education has seen many transformations. In antiquity, India remained the centre of education. The world famous Universities of Nalanda and Takshshila attracted the students across the Sea. The word "Vishwa Vidyalaya" itself expresses international character of the education. Exchange of knowledge whether through import or export, enhances the mental horizon and widens perception of the scholars. The changed Scenario has compelled the Educationists, Economists, Legislators and the Judges to consider the potential for growth of trade in the educational services in our Country. It is of-course true that the Education in general has been considered as a noble profession as such its commercialisation can not be permitted. However, it cannot be denied that the traditional Universities mostly affiliated Universities are ill-equipped to meet the challenges in the contemporary world. Although the Governments continue to spend on primary and secondary education, they are becoming more and more critical about financing higher education. There have been private initiatives with purely profit motives by unscrupulous persons, which has led to commercialization of Higher Education as is evident from the gross misuse of the Chhatisgarh Act, wherein within a year, 112 Universities were established. But it would be a travesty, if we close our eyes to the new challenges and the revolutions, which have taken place in the world of Education in last two decades mainly because of advancement in technology and the growing relations between the education- knowledge-health-economy of a nation. It is now economy that is linked with knowledge and Society that has foundation of knowledge. Education has, therefore, become a prime agenda for both developed and developing Nations. Thus, people and Nations are talking about trade in Education. This is what has forced Nations to talk about Education as a Service Industry and, therefore, inclusion of Education in W.T.O. regime under the "General Agreement on Trade Services" is already on cards. 2005 onwards GATS Rules permit Universities worldwide to set up centres anywhere in the World. Education has become marketable commodity which can be imported and exported. Indian Educational Institutions have been producing Engineers, Doctors, Management Executives holding key positions all over the World. The concept of World brotherhood is not mere theory but a, practice can only be ushered with adoption of a dynamic proposition of Export of Higher Education. This cannot be merely viewed either from purely commercial point or bureaucratic or copy book approach. Misuse of a provision of law by unscrupulous persons at a particular point of time in a particular region, should not withhold genuine efforts of private sector participation to promote trade in Educational Service, which is imperative in the existing circumstances. Professor Yashpal's Case: Professor Yashpal's case is landmark judgment in the field of Higher. Education rendered by the Apex Court. It has material bearing on the issue involved in the instant case. In the said case, Prof. Yashpal, an eminent Scientist and former Chairman, UGC, had challenged the constitutional validity of the Chhatisgarh Act. The said Act provided for the establishment of self-financed private universities-for imparting higher education and to regulate their functions and for matters connected therewith or incidental thereto. By Section 5 of the Act, the State was empowered to incorporate and establish the University by issuing a notification in the Gazette and Section 6 permitted such universities to affiliate any college or other institution or set up more than one campus with the prior approval of the State Government. In the said petition, it was averred that the State Government established Universities by issuing notifications in an indiscriminate and mechanical manner without having the slightest regard to the availability of any infrastructure, teaching facility or their financial resources. In a short span of about one year as many as 112 universities were established and many of them had absolutely no buildings or campus and were running from one-room tenements. It was further averted that irrespective of the fact that the universities were wholly incapable of imparting any education much less a quality education in absence of basic infrastructure like classrooms, libraries, laboratories or campus, they were empowered to award degrees. The private universities started running professional courses without taking prior permission from the regulatory bodies such as All India Council of Technical Education (AICTE), Medical Council of India (MCI), Dental Council of India (DCI) etc. It was apprehended that in absence of requisite permission from the statutory bodies, the degrees and certificates awarded by such universities would not be recognized, as a result thereof the students studying in such universities and obtaining the degrees would suffer immense loss, both in terms of money and also the time spent in completing the courses. It was argued that the UGC Act has been made nugatory as private universities were offering courses without subscribing to the demands laid down by UGC and there being no homogeneity of the course content. It was also complained that the Universities have been established merely to confer degrees and they have their own created large number of degrees and. diplomas, totally unheard- of. In reply to the petition, the respondent State of Chhatisgarh took the stand that in view of Entry 32 List 11 of the Seventh Schedule to the Constitution, the State had the legislative competence to make an enactment regarding incorporation of a university. According to the State of Chhatisgarh, the Act was enacted to facilitate establishment of private universities with a view to create supplementary resources for assisting the State Government in. providing quality higher education. It was averred that the notifications establishing the universities were issued on the basis of the representations made by the sponsoring bodies as set out in their project reports. Later on, it was found that functioning of the universities post-notification was dismal and completely belied the expectations which the State Government had in that behalf, raising serious concern about the academic interests of the students seeking admission therein. This compelled the State Legislature for amendment of the Act during the pendency of the writ petition in the name of Chhatisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Sanshodhan Adhiniyam, 2004. After expiry of the time limit fixed in the said amending Act, 59 universities were de-notified on account of their failure to comply with the amended provisions.
(3.) THE main feature of the amending Act, 2004 was to set up a "Regulatory Commission" for the purpose of ensuring appropriate standards of teaching, examinations, research, protection of the interests of the students and ensuring ,reasonable service conditions of employees by the university. THE Regulatory Commission was to function under the general control of the Visitor. It consisted of two full time and not exceeding two part-time members to be appointed by the Visitor. It was made obligatory on the part of the Regulatory Commission to take, in consultation with the university and other bodies concerned with regulatory functions of the higher education system in the Country such as UGC, AICTE, NCTE, MCI, Pharmacy Council and such agency/agencies established by the Central Government for regulation of education, such steps as it considers necessary for determination and maintenance of standards of teaching, examination and research in the university. However, the Supreme Court was of the view that the amending Act, 2004 did not make any appreciable change in the matter of issuing a notification for establishment of a university. The Court found that even after setting up Regulatory Commission, the possibility of establishing a University by issuing a notification only on the basis of paper Report, could not be ruled out. It was noted that process provided to the effect that the Regulatory Commission on receipt of the project report, proof of creation of the endowment fund and possession of land or in lieu thereof proof of deposit of additional fund and on being satisfied with the proposal to establish University, may advise the State Government to issue a notification but it did not make any substantial change. Thus, in the opinion of the Apex Court, Sections 5 and 6 of the amended Act suffered from the same vice as the un-amended provisions and, as such, were liable to be struck down being ultra vires. Dealing with the competence, the Court held that the State Legislature may make an enactment providing for incorporation of universities under Entry 32 of List 11 and also generally for universities under Entry 25 of List 111. The Apex Court explained and interpreted the word "University" occurring in Entry 32 referring its meaning given in Halsbury's Laws of England and the.New Encyclopaedia Britannica which means a whole body of teachers and scholars engaged at a particular place in giving and receiving instruction in the higher branches of learning and as such persons associated together as a society or corporate body, with definite organization and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, buildings and other property belonging to such body. The Court also referred to the other necessary attributes of a University as plurality of teachers teaching more than one higher faculties and other facilities for imparting instruction and research, provision for residence and certain standard of instruction providing for graduate and postgraduate levels of study. The Court emphasized that a University presupposes existence of a campus, classrooms, lecture theatres, libraries, laboratories, offices, besides some playgrounds and also sports facility for overall development -of personality of the students. The Court further observed that though incorporation of a University is an State subject under Entry 32 of List II but as basically, a University is an institution for higher education and research, the area of higher education and research is covered by Entry 66 of List-I, which speaks of coordination and determination of standard in institutions for higher education or research and scientific and technical institutions. Resolving the clash between the powers of the State and the Union, the Court held that while incorporation of universities as a legislative head being in the Stale List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum, standard of examination and evacuation and also research activity being carried on, will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which Parliament alone is competent. The Court emphasized that 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. The Court observed that in order to achieve the aforesaid purpose, the Parliament enacted the UGC Act. In view of Section 22 of the UGC Act, the right of conferring or granting degree can be exercised only by a university or an institution deemed to be university under Section 3 of the UGC Act or institution especially empowered by an Act of Parliament to confer or grant degrees. Dealing with the Chhatisgarh Act, the Court held that the enactment simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teachin facility for higher studies or facility for research is not contemplated by either of these entries. Thus, the Court found the Chhatisgarh Act a fraud on the Constitution and, as such, declared wholly ultra vires. The Court observed in para 49 as follows:- "49. The whole scheme of the impugned Act, especially the effect of Sections-4, 5 and 6 thereof and the result which it has led to in notifying as many as 112 universities within a short span of one year on the basis of proposals made on paper with many or most of them having almost zero infrastructural facilities clearly shows that the relevant provisions of the Act have completely stultified the power of Parliament under Entry 66 to make provision for coordination and determination of standards in institutions for higher education like universities, the provisions of the UGC Act and also the functioning of the University Grants Commission. Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the Constitution and are liable to be struck down." Dealing with the contention that the policy of the Government of India that the impugned enactment is an experiment in the changing world Scenario where the trend is towards globalization, the Court held that the impugned Act which enables only a proposal of a sponsoring body to be notified as a University, is not likely to attract private capital and a University so notified cannot provide education of any kind much less of good quality to a large body of students. The Court observed as follows:- "What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide a high level of teaching and other facilities like well-equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not universities without any teaching facility but having the authority to confer degrees. If good institutions are established for providing higher education, they can be conferred the status of a deemed university by the Central Government in accordance with Section 3, of the UGC Act or they can be affiliated to the already existing universities. The impugned Act has neither achieved nor is capable of achieving the object sought to be projected by the learned Counsel as it enables a proposal alone being notified as a university." ;