Holding

Sections 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Act, 2002 are ultra vires and are struck down.

Summary

Prof. Yashpal and other petitioners filed writ petitions under Article 32 challenging the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Act, 2002 and its 2004 amendment, alleging that Sections 5 and 6, which allow the State to create private universities by Gazette notification without any infrastructure, violate the Constitution and the University Grants Commission Act, 1956. The Court examined the legislative competence of the State under Entry 32 of List II and Entry 25 of List III, the exclusive Union power under Entry 66 of List I to coordinate standards in higher education, and the requirement that only institutions established or incorporated by a proper Act may confer degrees under Section 22 of the UGC Act. It held that the provisions permitting mere paper proposals to be notified as universities stultify the UGC’s role, breach constitutional distribution of powers, and amount to a fraud on the Constitution. Consequently, Sections 5 and 6 of the 2002 Act were declared ultra vires, all notifications establishing the private universities were quashed, and the universities were ordered to cease to exist, with a direction to affiliate any existing institutions to state universities.

Issues considered

The State's legislative competence to incorporate private universities by Gazette notification under Entry 32 List II and Entry 25 List III.
Whether Sections 5 and 6 of the Chhattisgarh Act violate the exclusive Union power under Entry 66 List I to coordinate standards in higher education.
Whether the provisions contravene Section 22 of the University Grants Commission Act, 1956, which restricts the right to confer degrees to universities established or incorporated by a Central, Provincial or State Act.
Whether the 2004 amendment cured the constitutional defects in the original Act.
Whether the State can permit off‑campus or offshore campuses of private universities beyond its territorial jurisdiction.

Legislation cited

Companies Act, 1956s. 2(7), s. 3, s. 3(6), s. 5(1)(b)
University Grants Commission Act, 1956s. 22, s. 23, s. 24, s. 26, s. 4, s. 5, s. 6

Subjects

private universityconstitutional validityultra viresUniversity Grants Commission Acthigher education standardsArticle 245Schedule VIIEntry 66 List IEntry 32 List IIEntry 25 List IIIdegree conferraloff‑campus centreoff‑shore campusendowment fund

Judgment

.... I
PROF. YASHPAL AND ANR. A
v.
STATE OF CHHATTISGARH AND ORS.

FEB RU ARY 11, 2005

[R.C. LAHOTI, CJ., G.P. MATHUR AND B
P.K. BALASUBRAMANY AN, JJ.]

Constitution of India-Schedule VII List II Ently 32, List /II Entry 25
and Article 246-lncorporation of private university-Pre-requisites for'-
Discussed.
c
Schedule VII List II Entries 32, 66 List Ill Entry 25 and Article 245-
Universities having power to have off-campus centers outside the State-Held,
ultra vires Article 245 (!)-Primacy of legislative competence of Parliament:__
Maintenance of high standards-Need for-' University '-Meaning of.L. D
Discussed.

Schedule VII List JI Entry 32, Articles 246, 73 and 162-Jncorporation
of university-Mode for-May be established only through legislative enactment
and not by exercise of executive power-Social impact of incorporation bf
university-Comparison with incorporation ofCompan~Distinction between. E
Articles 246, 254 and Schedule VII-Legislative competence-Primacy

- of Parliament-Held, any State legislation which simplifies or sets at naught
an enactment validly made by Parliament would be wholly ultra vires.

Education: F
Universities-Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur
Viniyaman) Adhiniyam, 2002-Sections 5,6,3(8) & 9-Chhattisgarh Ni}i
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam,
2004-Sections 5,6,3(6),2(7),5(J)(b)-Constitutional validity of-Held, are ultra

- vires the Constitution, being a fraud on the Constitution.

Universities-Degree-Value of-Held, principal advantage of holding
a university degree is in matter of employment, public or private or in self
G

employment-Interest ofsociety requires that the holder of an academic degree

23 H
24 SUPREME COURT REPORTS [2005] 2 S.C.R.

A possesses the proficiency and expertise in the suf?iect which the degree
certifies-Thus, poirer conferred to specific bodies-U0C Act, IY56-Sectio11
-
22.

University Grants Commission Act, 1956-0biect of and reasons for
creation of-Discussed-Expression 'established or incorporated' to be read
B as 'established and incorporated' in so far as private universities are concerned

Under Section 5 of the Adhiniyam the State has been empowered to
incorporate and establish a university by issuing a notification in the
Gazette and Section 6 permits such university to affiliate any college or
C other institution or to set up more than one campus with the prior
approval of the State Government.

According to the petitioners, after coming into force of the
Adhiniyam, the State Government has been, simply by issuing notifications
in the Gazette, establishing universities in an indiscriminate and
D mechanical manner without having slightest regard to the availability of
any infrastructure, teaching facility or their financial resources. In about
one year 112 universities were established and many of them had
absolutely no buildings or campus and were running from one room
tenements. There was absolutely no regulation or supervision over them.
The legislation has been ehacted in a manner which has completely done
E away with any kind of control of University Grants Commission ('UGC')
over these private universities. The guidelines issued by UGC on the
courses being taught and award of academic degrees has been given a
complete go-by. The universities issued brochures for award of all kinds
of degrees like "Member of the International Institute of Medical
Sciences", "Fellow of the International Institute of Medical Sciences" and
F
many other similar degrees. The universities are wholly incapable of
imparting any education much less a quality education in abserice of basic
infrastructure like classrooms, libraries, laboratories or campus.
Nevertheless by conferment of a legal status of a university, they have been
empowered to award degrees. The private universities are running
G professional courses without taking prior permission from regulatory
bodies such as All India Council of Technical Education (AICTE), Medical
Council of India (MCI), Dental Council of India (DCI), etc. The_
requirement of obtaining prior permission from the regulatory bodies ~as
not been followed and the universities are not under the control of any
H authority and are at liberty to grant degrees, diplomas and certificates to
""" PROF. YASIIPALv. STATE 25
~

J • gullible students. The State Government has not done any verification or
checking of universities after issuance of notification in the Gazette.,
whether they fulfill any norms laid down by the statutory bodies, which
A

is essential for recognition of the degrees, diplomas and certificate$
awarded by such universities. In absence of requisite permission from the.
statutory bodies, the degrees and certificates awarded by such universities
would not be recbgnized by the professional organizations, as a result B
whereof the students studying in such universities and obtaining the
degrees therefrom would suffer immense loss, both in terms of money and
also the time spent in completing the courses. It is further averred that
the University Grants Commission Act is made nugatory as private
universities are offering courses without subscribing to the standards laid c
down by the UGC and there being no homogeneity of the course content,
the degree awarded may not be of any value. The private universities are
offering unheard of courses and degrees which are not part of schedule
to the UGC Act, which is in clear violation of Section 22 of the aforesaid
Act and the Schedule appended thereto. The minimum requirement of
teaching staff as laid down in the guidelines of UGC had also been given D
a complete go-by. Young students are being misled in enrolling themselves
in courses which do not haye any substantive content and the degrees
offered by such private universities would affect the standard of education
at large which in turn will jeopardize the educational system of the whole
country and not that of State of Chhattisgarh alone. E
Several legal issues have also been raised in the writ petitions, the
principal being that the manner in which these private universities are
functioning would result in creating a complete chaos in the system of
higher education in the country and the expert bodies created by the
Central Government like, University Grants Commission, Medical Council F
of India, All India Council for Technical Education etc. for coordination
and determination of standards in their own respective fields would not
be able to perform their statutory duty and would make their functioning
not _only difficult but almost impossible.

Before this Court, the respondent State claimed that it has the G
I- legislative competence to make an enactment regarding incorporation of
..,.._.. a University; that the impugned Act had been passed to facilitate
establishment of private Universities with a view to create supplementary
resources for assisting the State Government in providing quality higher
education; that ttie notifications establishing the Universities were issued H
.,
f..

26 SUPREME COURT REPORTS [2005] 2 S.C.R.

A on the basis of the representations made by the sponsoring bodies as set 4
......r
out in their project reports, that the State Government expected that the
Universities would make the requisite infrastructure including campus,
building, etc. and recruit qualified staff so as to provide higher education
in order to achieve the object for which the Universities were established,
that however, the functioning of the Universities post notification was
B 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, that the State Legislature,
accordingly, enacted the Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004, and that after \--
c expiry of the time limit fixed in the aforesaid amending Act, 59 Universities
were de-notified on account of their failure to comply with the am.ended
provisions. It is further averred that after the Act had been amended in
the year 2004, the petitioners'' grievance has been completely met and
consequently the writ petitions deserve to be dismissed.

D HELD : 1. How the word "Universities" occurring as a legislative
I

\-
head in the Seventh Schedule should be interpreted, one has to look to
the legislative practice regarding interpretation of Constitutional entries.
[47-E]
-..
Wallace Brothers and Co. Ltd v. Commissioner oflncome~tax, Bombay,
E AIR (1948) PC 118, referred to.

South Carolina v. United Siates, (1905) 199 US 437; Ex part1!
Grossman, (1925) 267 US 87 and Croft v. Dunphy, (1933) AC 156, referred
to. -.
F Constitutional Law ofIndia by Seervai, para 2.12 (3rd ed.) and Volume
I 5 Hals bury 's Laws of England (Fourth .ed. Reissue), referred to.

2.1. Though incorporation of a University as a legislative head is; a
State subject (Entry 32 List II) but basically University is an institution
for higher education and research. Entry 66 of List I is coordination and
G determination of standards in institutions for higher education or resea1rch
~
and scientific and technical institutions. There can thus be a clash betwieen
the powers of the State and that of the Union. The interplay of various
entries in this regard in the three lists of the Seventh Schedule and the

H of this Court. (53-D-EJ .
real import of Ji:ntry 66 of List I have been examined in several decisions
~
r·

--
PROF. YASHPAL v. STATE 27
Gujarat University v. Shri Krishna. AIR (1963) SC 703; State of Tamil A
Nadu and Anr. v. Adhiyaman Educational and Research Institute, [ 19951 4
SCC 104; Osmaiila University Teachers Association v. State of Andhra
Pradesh and Anr., [19871 4 SCC 671; Kera/a State Electricity Board v. Indian
Aluminium Co., ( 1976[ I SCC 466 and Dr. Preeti Srivastava and Anr. v. State
of MP. and Ors., (19991 7 SCC 120, referred to.
B
- 2.2. 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 C
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 .·esearch 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 D
country and also unitbrmity in standards is maintained. (57-A-C)

2.3. 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
("UGC Act") states that it is obvious that neither co-ordination nor E
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 p
Universities and that 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.
(57-C-F[

2.4. In the second para of the Statement of Object and Reasons, it is G
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
and that the Commission will act as an expert body to advise the Central H
28 SUPREME COURT REPORTS [2005) -2 S.C.R.

A Government on problems connected with the co-ordination of facilities and
maintenance of standards in Universities. [57-G[

- 3.1. The preamble of the UGC Act says - an Act fo make provision
for the coordination and determination of standards in Universities and
for that purpose to establish a University Grants Commission.
B (57-H; 58-All

3.2. 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 instituti_on deemed to be University under Section 3 of
C the aforesaid Act or institution especially empowered by an_ Act of
Parliament to confer or grant degrees. (59-A]

Webster's Third New International Dictionary; Wharton's law lexicon; -1
Chambers's Twentieth Century Dictionary; P. Ramanatha Aiyar law Lexicon
(2nd Ed); Encyclopedia Americana and The New Encyclopedia Britannica1,
D referred to. -

3.3. A degree conferred by a University is a proof of the fact that :a
person has studied a course of a particular.higher level and has successfully
passed the examinati«in certifying his proficiency in the said subject of study
to such level. In the case of a Doctorate degree, it certifies that the holder of
E the degree has attained a high level of knowledge and study in the concerned
subject by doing some original research work. A University degree confers
a kind of a status upon a person like a graduate or a post-graduate. Thos:e
who have done research work and have obtained a Ph~D., D.Lit., or D.S1c.
degree become entitled to write the word "Doctor" before their name and
command certain amount of respect in s~ciety as educated and
F knowledgeable persons. That apart, the principal advantage of holding a
University degree is in the matter of employment,_where a minimum
qualification like agraduate, post--graduate or a professional degree from
a recognized institute is prescribed. Even for those who do not want to take
up a job and want to remain in private profession like a doctor or lawyer,
G registration with Medical Council or Bar Council is neces~ary for whkh
purpose a degree in medic_ine or law; as tbe case may be, from an institution ~
recognized by the said bodies is essential. An ~cademic degree. is, t_herefore, -·
of great significance and value for the hol~er thereof and goes a long way
in shaping his future. The interest of society also requires that the holder of
an academic degree must possess the requisite proficiency and expertise in
H the subject which the degree certifies. (60-E-H; 61-A]
-
PROF. YASHPAL v. STATE 29
; 3.4. Mere conferment of degree is not enough. What is necessary is A
that the degree should be recognized. It is for this purpose that the right
to confer degree has been given under Section 22 of UGC Act only to a
University established or incorporated by or under a Central Act,
Provincial Act or State Act or an institution deemed to be a University
under Section 3 or an institution specially empowered by an Act of
B!.
Parliament to confer or grant degrees. Sub-section (3) of this Section
provides that "degree" means any such degree as may, with the previous
approval of the Central Government, be specified in this behalf by the
Commission by notification in the Official Gazette. 161-B-CJ

Azeez Basha v. Union of India, AIR (1968) SC 662, relied on. c
4.1. The requirement of Section 4 is submission of an application
containing Project Report which will merely indicate availability of land
and some proposals and schemes for generation of funds and mobilization
of resources and also proposal for development of building etc. and courses
of study proposed to be started. It is this Project Report which merely D
contains some proposals and schemes for future implementation which is
accorded sanction by the State Government. 165-D-EJ

4.2. Section 5 says that the State Government may by notification
in the Gazette establish a University by such name and with such
jurisdiction and location of campus, as may be specified therein having E
regard to the desirability to establish a University. The effect of these
provisions is that a Project Report on paper only, which will merely be a
proposal or a scheme for doing something in future, will be notified as a
University by issuing a notification to that effect in the Gazette. [65-E-FJ
F
5.1. The State Legislature is undoubtedly empowered to legislate and
make an enactment for incorporation and establishment of Universities
in view of Entry 32 of List II and Entry 25 of List III. The "University"
as a topic of legislation has not been introduced for the first time in the
Seventh Schedule of the Constitution but was already there in the
Government of India Act, where Entry 13 of List I related to Banaras G
~ Hindu University and Aligarh Muslim University and Entry 17 of List II
was education including Universities other than those specified in Entry
13 of List I. The framers of the Constitution had the same concept of
"University" in their mind as was there in the Government of India Act
when they made the relevant entries in the Seventh Schedule of the H
30 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Constitution. Keeping in v\ew the principles of legislative practice, the
word "University" should be given tt!e same meaniqg as it was generally
understood at the relevant time having due regard to what is ordinaril)'
•--
treated as embraced within that topic or subject. 165-H; 66-A-CJ

5.2. University is a whole body of teachers and scholars engaged at
B a particular place in giving and receiving instructions in 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, building;
c and other property belonging to such body. Other necessary attributes of
University are plurality of teachers teaching more than one higher faculties
and other facilities for imparting instructions and research, provision for
residence and must have certain standard of instructions providing for
graduate and post-graduate levels of study. It pre-supposes existence of a
campus, classrooms, lecture theatres, libraries, laboratories, offices, beside~•
D some playgrounds and also sport facility for overall development of
personality of the students. However, under the provisions of the impugned
Act, a proposal which is on paper and merely gives some kind of a plan
or scheme to be done in future is notified as a University. When thie
Constitution has conferred power on the State to legislate on incorporation
E of University, any Act providing for establishment of the University must
make such provisions that only an institution in the sense of University as
it is generally understood with all the infrastructural facilities, where
teaching and research on wide range of subjects and of a particular levd
are actually done, acquires the status of a University. 166-C-GI

F 5.3. The impugned Act does not at all establish a University, yet by
......
issuing a notification conferring the legal status of a University to a Projed
Report (which is on paper only) bestows upon it a right to confer a degre1e,
which right it gets by virtue of Section 22 of the UGC Act. The manner in
which a University is notified by issuance of a Gazette notification undt:r
Section 5 and conferment of a juristic personality under Section 6 of the
G
Act is clearly contrary to the constitutional scheme and is not contemplat£:d
by Article 246 of the Constitution. f66-G-H; 67-AI 1

5.4. The State Legislature can make an enactment providing for
incorporation of Universities under Entry 32 of List II and also generally
H for Universities under Entry 25 of List III. The subject "University" as a
PROF. YASl-IPAL v. STATE 31

- legislative head must be interpreted in the same manner as it is generally
or commonly understood, namely, with proper facilities for teaching of
A

higher level and continuing research activity. An enactment which 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 UGC Act and thereby acquires the right of conferring or B
granting academic degrees but without having any infrastructure or
teaching facility for higher studies or facility for research is not
contemplated by either of these Entries. Sections 5 and 6 of the impugned
enactment are, therefore, wholly ultra vires being a fraud on the
Constitution. 167-B-D)

6.1. Entry 66 which deals with co-ordination and determination of
c
standard in institutions for higher education or research and scientific and
technical institutions is in Union List and the Parliament alone has the
legislative competence to legislate on the said topic. The University Grants
Commission Act has been made with reference to Entry 66. The Act has
been enacted to ensure that there is co-ordination and determination of D
standards in Universities, which are institutions of higher learning, by a
body created by the Central Government. It is the duty and responsibility
of the University Grants Commission, which is established by Section 4
of the UGC Act, to determine and coordinate the standard of teaching
curriculum and also level of examination in various Universities in the E
country. In order to achieve the aforesaid objectives, the role of UGC
comes at the threshold. The course of study, its nature and volume, has
to be ascertained and determined before the commencement of academic
session. Proper standard of teaching cannot be achieved unless there are
adequate infrastructural facilities in the campus 1.ike classrooms, libraries,
laboratories, well-equipped teaching staff of requisite caliber and a proper F,
student-teacher ratio. For this purpose, the Central Government has made
a number of Rules in exercise of powers conferred by Section 25 of UGC
Act and the Commission has also made Regulations in exercise of power
conferred by Section 26 of the UGC Act and to mention a few, UGC
Inspection of Universities Rules, 1960, OGC Regulations 1985 regarding G
the Minimum Standards of Instructions for the Grant of the First Degree,
UGC Regulations, 1991 regarding Minimum Qualifications for
Appointment of Teachers in Universities and Colleges, etc. The UGC with
the approval of the Central Government and exercising power under
Section 22(3) of the UGC Act has issued a schedule of degrees which may
be awarded by the Universities. The impugned Act which enables a H
32
-
SUPREME COl)RT REPORTS [2005 j 2 S.C.R.

A proposal on' paper only to be notified as a University and thereby
conferring the power upon such University under Section 22 of the UGC
Act to confer degrees has the effect of completely stultifying the functioning
of the University Grants Commission in so far as these Universities are
concerned. Such incorporation of a University makes it impossible for the
B UGC to perform its duties and responsibilities of ensuring co-ordination
and determination of standards. In absence of any campus and other
infrastructural facilities, the UGC cannot take any measures whatsoever
to ensure a proper syllabus, level of teaching, standard of examination and
evaluation of academic achievement of the students or even to ensure that
the students have undergone the course of study for the prescribed period
C before the degree is awarded to them. [67-D-H; 68-A-D)

Prem Chand Jain v. RK. Chhabra, [1984) 2 SCR 883 and Osmania
University Teachers Association v. State of Andhra Pradesh, [1987) 4 SCC
671, referred to.

D 6.2. The inter se evaluation of merit of candidates is often required
to be done while making selection for some higher or specialized course
of study or in the matter of employment. One of the important functfons
to be performed by the UGC is co-ordination and determination of
standards in instit~tions for higher education so that some kind of'
uniformity is maintained in level of teaching and examination and also
E award of degrees by various Universities. The impugned enactment,
however, enables a sponsoring body, without having any kind of teaching:
facility to award degrees. In view of clauses (8) and (9) of Section 3 of th€:
Act, a University can be established only to establish examination centres
or just to institute degrees, diplomas, certificates and other academk
F distinctions on the basis of examination or any other method of evaluation ·
anywhere and without any pre-determined standards. The possibility that
such Universities which award degrees without having any teaching facility
and without imparting any education will do so only for the purpose of
making money is writ large. The fact that the amendments made in th1e
Act in 2004 making it mandatory to create an endowment fund of Rs. :?
G crores and having provision of 15 acres of land have been challenged by
many Universities speaks volumes of their intention. Preparing a Projec:t
Report on paper is not a difficult job and any number of sponsoring bodies
can be created or formed in order to take advantage of-the easy
opportunity made available by the impugned Act. Persons with absolutelly
H no knowledge in the subject may be awarded high degrt:es or oth(~r
PROF. YASHPAL v. STATE 33

distinctions like a Ph.D., D.Lit., or D.Sc. This is bound to create havoc A
with the system of higher education in the country and would result in
nullifying the main object for which University Grants Commission has
been established and would render many provisions of the UGC Act
unworkable and otiose. 168-D-H; 69-A-BI

6.3. Any State legislation which stultifies ur sets at naught an B
enactment validly made by Parliament would be wholly ultra vires.
(69-CJ

R. Chitralekha v. State of My.~ore, AIR (1964) SC 1823, relied on.

7. The whole scheme of the impugned Act, especially the effect of C
Sections 4, 5, 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 the Parliament under Entry D
66 to make provision for co-ordination and determination of standards
in institutions for higher education like Universities, the provisions of the
UGC Act and also the functioning of University Grants Commission.
Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the
Constitution of India and are liable to be struck down. (70-A-C)
E
8. The amending Act of' 2004 does not make any appreciable change
in the matter of issuing a notification for establishment of a University.
Under the amending Act, Regulatory Commission is to be established by
the Visitor (Governor). The application containing the Project Report shall
be made to the Regulatory Commission one year before the date from.
which it intends to start the University along with proof of having F
established an endowment fund of Rs. 2 crores which shall be used as
security deposit to ensure that the University complies with the provisions
and functions as per the provisions of the Act. In addition proof of being
in possession of 15 acres of land in case the main campus is proposed to
be established within the municipal corporation limits of Raipur otherwise G
25 acres of land has to be furnished. Where the land has been obtained
on lease, the period of lease should be at least 30 years. It further provides
that if the sponsoring body does not possess the required land, it shall
furnish proof of having deposited an additional sum of Rs. 2 crores in the
manner prescribed. The Regulatory Commission on receipt of the Project
Report, proof of creation of the endowment fund and possession of land H
34 SUPREME COURT REPORTS [2005] 2 S.C.R.

A or in lieu thereof proof of deposit of additional fund and if satisfied with
the proposal to establish the University, may advise the State Government
to issue a notification. Section 5 provides that the State Government on
receipt of the advice of the Regulatory Commission may declare by
notification in Official Gazette that the University is established. Here
B again, without any infrastructure and without the teaching facilities having
been provided, the proposal on paper is notified as a University. Section
4(l)(b)(ii) mentions "possession of land" and not "ownership". It is not
difficult to speculate whether the heavy expenditure involved in making
construction of buildings (classrooms, lecture halls, offices and hostels,
etc.), libraries and laboratories would at all be undertaken on land which
C has been taken on lease for a short period of 30 years. Thus, the amended
Sections 5 and 6 suffer from the same vice as the unamended provisions
and are liable to be struck down as being ultra vires. (74-B-GJ

9. In view of Regulation 3.1, a private University can only be
established either by a separate Act or by one compendious Act where
D the legislature specifically provides for establishment of the said University.
Though an attempt has been made in Section S(l)(b) of the amended Act
in this regard, but the same does not conform to the Regulations inasmuch
as the initial notification notifying. in the Official Gazette that the
University is established, is done by the e~ecutive order and not by any
E Act of legislature. (77-D-E)

10. Sections 3, 3(1)(i), 12, 13, 26, 33 and 34 of the Companies Act
relate to incorporation of a Company. It need not have a prior business
and a mere statement of a lawful purpose in the Memorandum of
Association is enough. If a Company is unable to achieve its objective and
p is unable to carry on business, the shareholders may suffer some financial
loss, but there is absolutely no impact on society at large. However, a
University once incorporated gets a right to confer degrees. A University
having no infrastructure or teaching facility of any kind would still be in
a position to confer degrees and thereby create a complete chaos in the
matter of co-ordination and maintenance of standards in higher studies
G which would be highly detrimental for the whole nation. A University may,
therefore, be established either by the State in exercise of its sovereign
power which would obviously be through a legislative enactment. In the
case of a private University it is necessary that it should be a pre-
established institution for higher education with all the infrastructural
H facilities and qualities which may justify its claim for being conferred with
PROF. YASHPAL v. STATE 35
. , the status of a University and only such an institution can be conferred
the legal status and a juristic personality of a University. (77-F-H; 78-AI
A

R. Chitra/ekha v. State of Mysore, AIR (i964) SC 1823 and Gujarat
University v. Shri Krishna, AIR (1963) SC 703, referred to.

I I. The word "or" is normally disjunctivP. and "and" is normally B
conjunctive but at times they are read vice-versa to give effect to the
manifest intentions of the legislature, as disclosed from the context. If
literal reading of the word produces an unintelligible or absurd result
"and" may be read for "or" and "or" may be read for "and". Having
regard to the Constitutional scheme and in order to ensure that the
enactment made by the Parliament, namely University Grants Commission C
Act is able to achieve the objective for which it has been made and the
UGC is able to perform its duties and responsibilities, and further that
the State enactment does not come in conflict with the central legislation
and create any hindrance or obstacle in the working of the latter, it is ·
necessary to read the expression "established or incorporated" as D
"established and incorporated" insofar as the private Universities are
concerned. (78-D-G)

State of Bombay v. RMD Chamarbaugwala, AIR (1957) SC 699 and
Mazagaon Dock v. CIT, AIR (1958) SC 861, referred to.
E
Principles of Statutory Interpretation by G.P. Singh, 7th ed. Page 339,
referred to.

- 12. The amending Act of 2004 came into force on 17.3.2004. Section.
4(1-A) which was inserted by this amendment provided that a University
already established in the State under the provisions of the Adhiniyam F
shall comply with the provisions of clauses (b) to (e) of sub-section (1) of1
Section 4 by 30th June, 2004 or else the notification issued by the
Government under sub-section (1) of Section 5 of the Adhiniyam shall be
liable to be cancelled on the recommendations of the Regulatory'
Commission. These provisions related to creation of an endowment fund. G
of Rs. 2 crores and requirement of land. It appears that as many as 59
I

Universities were denotified as they did not comply with the requirements
of the aforesaid provision. (79-C-E)
I

13. In order to establish a University, there must be adequate land
on which the campus may be made and necessary infrastructural facilities H
36 SUPREME COURT REPORTS [2005] 2 S.C.R.

A provided. No University can come into existence without a proper campus
which requires land. Similarly, for those who want to establish a
University, a sum of Rs. 2 crores is a very small amount. It will be seen
that Section 4(1)(c) provides that endowment fund shall be used as security
deposit to ensure that the University complies with and functions as per
B the Act. The history of establishment of Aligarh Muslim University has
been given. Though in the year 1877 the Viceroy laid the foundaticm stone
for the establishment of MuhammadaQ Ango-Oriental College, Aligarh,
which over a period of time became a flourishing institution, yet, when a
demand was made to establish a University, the Government of India made
a condition that at least Rs. 30 lakhs must be collected and thereafter the
C University was established by the 1920 Act. It is extremely difficult to
visualize the real value and purchasing power of Rs. 30 lakhs of the year
1920 at the present juncture. For those who want to establish a University,
a sum of Rs. 2 crores is just a pittance. The fact that many of the private
Universities have challenged the provisions of the amending Act itself
shows their intention and purpose that they do not want to create any
D infrastructure but want to have the right of conferring degrees and earn
money thereby. However, it is not necessary to examine the challenge
raised to the amending Act _in detail, it has already held that Sections 5
and 6 are wholly ultra vires and all notifications issued thereunder notifying
the Universities being invalid are liable to be struck down.
E [79-H; 80-A-D)

Azeez Basha v. Union of India, AIR (1968) SC 662, referred to.

14. 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
F and a University so notified cannot provide education of any kind much
less of good quality to a large body of students. 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 high level of teaching and other facilities
G 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
H the authority to confer degrees. If good institutions are established for
PROF.YASHPALv.STATE 37
providing higher education, they can be conferred the status of a deemed A
University by the Central Government in accordance with Section 3 of
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 as it enables a proposal alone being notified as a
University. [81-B-El
B
15. In order to protect the interests 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 appropriat~
measures to have such institutions affiliated to the already existing State
Universities in Chhattisgarh. This direction is issued keeping in mind the, C
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. D
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 Coun~il of India or any other statutory authority
and with their approval or sanction as prescribed by law. E
[81-G-H; 82-A-B]

16. The 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. Consequently, all
notifications issued by the State Government in the Gazette in the F
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 issued.
(82-D-EI G
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 19 of2004.

(Under Article 32 of the Constitution of India.)

WITH
38 SUPREME COURT REPORTS [2005] 2 S.C.R.

A W.P. Nos. 295, 299, 346 and 525/2004, 565/2003, C.A. Nos. 5146,
5161, 5171, 5172, 5174, 5175, 5180, 5184, 5185, 5188, 5189, 5190, 5191,
5197 and 5198 of 2004.

Amarendra Sharan, Additional Solicitor General, (NP), Rakesh Dwivedi,
Dr. Rajeev Dhavan, L.N. Rao, (NP), Ravindra Srivastava, (NP), Ravi Shankar
B Prashad, A.K. Ganguli, Ashok, A. Desai, Ms. Niranjana Singh, Ms. Vimla
Sinha, Abhishek Chaudhary,.Gaurav Bhatia, Adarsh Upadhyay, Vi"vek Singh,
Lakshmi Raman Singh, Ravi Prakash, Chandra Prakash, Prakash Srivastava,
M.K. Choudhary, Kuna! Verma, Ms. Rashmi Rai, P.K. Ray, (NP), Raj Kumar
Mehta, Chandra Shekhar, Shakil Ahmed Syed, J.K Soni, Seeraj Bagga, Ms.
C Sureshta Bagga, Arvind Kumar, Ms. Laxmi Arvind, Ms. Jaya Sinha, Ms.
Poonam Prasad, Roy Abraham, Ms. Seema Jain, Himinder Lal, Sun ii Kumar,
Himanshu Shekhar, Manik Vedsen, Suresh, C.Gupta, Kamal Mohan Gupta,
Krishan Prakash Dubey, Dinesh Kumar Garg, B.S. Bilowria, Rohit Pandey,
D.K. Gupta, S.K. Bandyopdhyay, Raj Kumar Mehta, Ravish Chandra Agarwal,
Gneral (NP) for State of Chhattisgarh, Ms. Supama Srivastava, Ms. Rajesh
D Srivastava, Ms. Deepti Singh, Rahul Srivastava, Amitesh Kumar, E.C. Vidya
..
Sagar, Maninder Singh, Ms. Pratibha, M. Singh, Angad Mirdha, Saurabh
Mishra, Chava Badri Nath Babu, Bimal Roy Jad, V.K. Rao, Ms. Madhu
Sikri, Jainendra Maldahiyar, Saket Sikri, Satish Kumar, Sanjeev Sachdeva,
Ms. P~iya Puri, V.Shekhar, S. Ganesh, Ms. Manjusha Narain, Rakesh Shrouti,
E B.K. Satija, Ms. Hetu Arora, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms.
Anitha Shenoy, Sharan Dev Singh Thakur, P. Venkat Reddy, Anil Kumar
Tandale, J.K. Soni, Ghanshyam Joshi, Dipak Kumar Jena, Avik Datta, V.K.
Monga, Satyajit A Desai, Venkateswara Rao Anumolu, Sunil Kumar, P.N.
Jha, Ms. B. Vijayalakshmi Menon, Rakesh K. Sharma, Roy Abraham, Ms.
Seema Jain, Himinder Lal, Y. Raja Gopala Rao, Ms. Sasmita Tripathy, Y.
F Ramesh, Suresh C. Gupta, Kuna) Verma, Dr. S.K. Verma, Nikilesh
Ramachandran, A. Deb Kumar, Sudarsh Menon, B.S. Sharma, Raj Kumar
Mehta, Ms. Rakhi Ray, Ms. Mrinalini Chandy, Ms. Bina Gupta, Yash Pal
Dhingra and M.T. George for the appearing parties.

The Judgment of the Court was delivered by
G
G.P. MATHUR, J. I. Professor Yashpal, an eminent Scientist and
former Chairman of University Grants Commission, has filed Writ Petition
No. 19 of 2004 under Article 32 of the Constitution by way of public interest
litigation for declaring certain provisions of The Chhattisgarh Niji Kshetra,
H Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 as ultra vires
PROF. YASHPAL v. STATE [G.P. MATHUR, J.] 39
and for quashing of the notifications issued by State of Chhattisgarh in the A
purported exercise of power conferred by Section 5 of the said Adhiniyam
for establishing various universities .. The other petitioner who has joined in
the petition, is a resident of Chhattisgarh and is concerned with the quality
of education in his State. The respondent no. I to the petition is the State of
Chhattisgarh, respondent no. 2 is the University Grants Commission and,
respondent nos. 3 to 94 are the private universities which have been established B
.- by the State of Chhattisgarh under the aforesaid Adhiniyam .

2. The Chhattisgarh Legislature enacted the Chhattisgarh Niji Kshetra 1

Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short 'the•
Act') which was published in the Gazette on 4.2.2002 to establish self-financed, C
private universities for higher education. Under Section 5 of the Act the State
has been empowered to incorporate and establish a university by issuing a
notification in the Gazette and Section 6 permits such university to affiliate
any college or other institution or to set up more than one campus with the
prior approval of the State Government. The main averments in the petition
are that after coming into force of the Act, the State Government has been, D
simply by issuing notifications in the Gazette, establishing universities in an
indiscriminate and mechanical manner without having 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 E
from one room tenements. There was absolutely no regulation or supervision
over them. The legislation has been enacted in a manner which has completely
done away with any kind of control of University Grants Commission (for

- short 'UGC') over these private universities. The guidelines issued by UGC
on the courses being taught and award of academic degrees has been given
a complete go-by. The universities issued brochures for award of all kinds of F
degrees like "Member of the International Institute of Medical Sciences",
"Fellow of the International Institute of Medical Sciences" and many other
similar degrees. The universities are wholly incapable of imparting any
education much less a quality education in absence of basic infrastructure
like classrooms, libraries, laboratories or campus. Nevertheless by conferment G
of a legal status of a university, they have been empowered to award degrees.
The private universities are running professional courses without taking prior
permission from regulatory bodies s.uch as All India Council of Technical
Education (AICTE), Medical Council of India (MCI), Dental Council of
India (DCI), etc. The requirement of obtaining prior permission from the
regulatory bodies has not been followed and the universities are not under the H
40 SUPREME COURT REPORTS [2005) 2 S.C.R.

A control of any authority and are at liberty to grant degrees, diplomas and
certificates to gullible students. The State Government has not done any
verification or checking of universities after issuance of notification in the
Gazette, whether they fulfill any norms laid down by the statutory bodies,
which is essential for recognition of the degrees, diplomas and certificates
B awarded by such universities. In absence of requisite permission from the
statutory bodies, the degrees and certificates awarded by such universities
would not be recognized by the professional organizations, as a result whereof
the students studying in such universities and obtaining the degrees therefrom
would suffer immense loss, both in terms of money and also the time spent
in completing the courses. It is further averred that the University Grants
C Commission Act is made nugatory as private universities are offering courses
without subscribing to the standards laid down by the UGC and there being
no homogeneity of the course content, the degree awarded may not be of any
value. The private universities are offering unheard of courses and degrees
which are not part of schedule to the UGC Act, which is in clear violation
of Section 22 of the aforesaid Act and the Schedule appended thereto. The
D minimum requirement of teaching staff as laid down in the guidelines of
·uac had also been given a complete go-by. Young students are being misled
in enrolling themselves in courses which do not have any substantive content
and the degrees offered by such private universities would affect the standard
of education at large which in tum will jeopardize.the educational system of
E the whole country and not that of State of Chhattisgarh alone.

3. Some photographs have also been filed which show that a signboard
mentioning the name of.the University is put over small room or shop on first
or second floor in some congested market area. That they are functioning
from small premises which are sometimes a single small room in a commercial
F complex or a small tenement on the first or second floor of a building or an
ordinary flat or MIG house is evident from their address and a few of them
are being reproduced below by way of illustration :
Respondent No. 3 Thamath University, Raipur I
Room No. 201, llnd Floor "
G Raipur Commercial Complex
Jairam Complex, Raipur.

Respondent No. 13 1.1.L.M. University
Mishr Bhawan, I st Floor
Tatyapara, Raipur.
H
PROF. YASHPAL v. STATE [G.P. MATHUR, J.] 41

.-- f A
Respondent No. 36 Supreme University
M.l.G. 6, Sector 3
Shankar Nagar, Raipur.

Respondent No. 37 E.M.P.I. University
C-9-12, Ist Floor B
~ Ekatam Prishar
Rajbandha Maidan, Raipur.
Respondent No. 42 Jaipuria University, Raipur
I st Floor, Mishr Bhawan; Raipur.
Several such univers1t1es are functioning outside the State of c
Chhattisgarh, and their addresses as given below demonstrate the said fact :
Respondent No. 7 N.1.1.L.M. University
11166, Shershah Suri Marg
Mohan Co-operative Industrial Estate,
New Delhi. D
Respondent No. 9 Lovely University
Lovely Auto Complex
Dr. Ambedkar Chowk
Jalandhar City.

Respondent No. IO
E
Babu Banarasi Dass University
Babu Banarasi Dass Northern
Indian Foundation
Upper Ground Floor, 338-384,
S-Block New Rajinder Nagar,
New Delhi. F

Respondent No. 12 Dr. Zakir Hussain National University
Unopcharik av Anvrat Shikshan
Sansthan Satellite Centre, Balley Road
Patna.
Respondent No. 45 Bio-Informatics, Bio-Tech. and Life
G
;
Science University, Raipur Bio-
lnformatic Institute of India B-5,
Sector 3 Noida.
(
Respondent No. 46 Institute of Business Administration
(N.C.D. Office) Ground Floor E-382, H
42 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Greater Kailash Part II New Delhi.

Respondent No. 53 Adarsh University of Science &
Technology, Chhattisgarh, N.I.C.I.
Society, 54, Todannal Road
Bengali Market New Delhi.
B
4. Writ Petition (Civil) No. 565 of 2003 has been filed by Gopal Ji
Agarwal with the $ame prayer, namely, that the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam 2002 be declared as
ultra vires being violative of Constitution of India, and also contrary to the
provisions of University Grants Commission Act, 1956, Indian Medical
C Council Act, 1956,. All India Council for Technical Education Act, 1987 and
Bar Council of India Act, 1956: A further· prayer has been made that a writ
of prohibition ·ma}'. be issued restr~inirig:thi private universities incorporated: . .i
under the aforesaid Act from imparting any education and conferring any
degrees or diplomas. The avetments made in the writ petition are substantially
D the same as made in the writ petition filed by Prof. Yash Pal, that a large
number of universities have been incorporated by merely issuing gazette
notifications though they do not have any kind of infrastructure or teaching
facility and are functioning from orie room tenement in a second or third
floor in a residential. or commercial b1,1ilding and without any teaching staff.
The universities !)ave been established :merely.to confer degrees and they
E have on theirown created a large number of degrees and diploma's which are
totally unhea~d of. The universities had issued advertisements for opening up
study centres in different parts of t~e country for award of any number of
degrees and diplomas. By way of illu~tration, copies of advertisements issued
by some of the universities have been filed. One of such university, namely,
F the Indian University, issued an advertisement inviting applications for Nodal
Service Centres/University Centres for awarding the following kind of degrees
and diplomas : .

Master of Biotechnology Administration (MBA) 2 Yrs.

Master of Insurance Management (MIM) 2 Yrs.
G
M. Tech
. in Bioinformatics
.. 2 Yrs.
. .

M. Tech VLSI (Vet)t' La~ge s·cale lntg: 'circuits) 2 Yrs.··
M. Tech Elect. Mechanics & Power Semi
H Conductor Drive 2 Yrs.
PROF. YASl-IPAL v. STATE [G.P. MATHUR . .I.] 43'

-) M. Tech Energy Management Systems 2 Yrs. A
M.Sc. Cheminformatics (lntg)/Bioinformatics(lntg) 5 Yrs.

. M.Sc. Biotechnology (lntg.) 5 Yrs .

M.Sc. Bioinformatics/Biotechnology 2 Yrs. B
. B.Sc. with Bioinformatics/Microbiology/
Biotechnology 3 Yrs.

B.Sc. with Automobiles Science 3 Yrs.

PGD in Biotech Marketing I Yr.
c
. PGD in Imaging (Ct Scan) & (MRI) 2 Yrs .

. POD in Bioinformatics - 1.5 Yrs.
. PG Diploma in Cheminformatics 1 Yr . D
. PG Diploma in Mobile Technology 1 Yr .

. PG Diploma in Energy Audit and Conservation l Yr .

. PG Diplorna in Acturial/Sciences in Bioinformatics - l Yr. E
The writ petitioner, not knowing the correct facts, responded for opening
up a study centre and he was asked to deposit Rs. 50,000 which he did by
two Demand Draft!i. On enquiry regarding prior permission from Medical
Council of India, the Registrar of the Indian University issued a certificate
which reads as under : .f
"Certified that following PARA MEDICAL COURSES are approved
by INDIAN UNIVERSITY, RAIPUR.

(1) BP T - 2 Year
G
(2) Bachelor of Ophthalmology - 2 Year

....-- (3) B M L T - 4 Year

(4) PG Diploma in Imaging (MRI) - I Year

It is further certified that for Para Medical Course MCI approval is H
44 SUPREME COURT REPORTS [2005) 2 S.C.R.

A not required and it is not covered by MCI also."

It is further averred that the Indian University, Raipur also issued an
'· -
advertisement inviting applications for admission to certain types of technical
courses in its alleged campus at Graduate School of Business & Administration,
Greater Noida, which is in the district of Gautam Budh Nagar, in the State
B of UP and it was mentioned therein that the candidates may apply to the
Registrar by sending a Bank Draft of Rs. 800. A photocopy of the
advertisement has been filed. It has thus been submitted that though the
private universities have no infrastructure for imparting any kind of education,
they were alluring people all over the country to open study centres for
c which they were charging huge amount and also befooling students to apply
for admission to wholly unknown and unheard of technical, medical and ..J
other professional courses which are not recognized by any statutory authority,
and thereby a substantial amount of money has been collected.

5. In a stereotyped manner Gazette notifications were issued notifying
D a University and by way of illustration one "such notification is being
reproduced below :

"Raipur, the l lth October, 2002

No. F. 679/ ........... ./02. - In exercise of the powers conferred by sub-
Section (I) of Section 5 of .the Chhattisgarh Niji Kshetra '"""""
E
Vishwavidyalaya (Sthapana Aur Viniyaman), Adhiniyam, 2002 (No.
' .
2 of 2002) for extensi.m of Higher/Technical Education in '

Chhattisgarh, hereby, establishes a University known as "Indian
University, Raipur" with.effect from the date of publication of this
notification in the Chhattisgarh Gazette and the jurisdiction of the
F University shall extend over whole of Chhattisgarh.

2. The Head Office of the University shall be at Raipur.
3. The State Government, hereby authorizes "Indian University,
Raipur" to conduct the syllabus and to grant degree or diplomas
for which it shall be recognized or authorized as may be required
G
under. any other law for the time being in force."
~

6. Several legal issues have also been raised in the writ petitions and '1
the principal being that the manner in which these private universities are
functioning would result in creating a complete chaos in the system of higher
H education in the country and -the expert bodie.s created by the Central
PROF. YASHPAL v. STATE [G.P. MATHUR, .I.] 45
'
Government like, University Grants Commission, Medical Council of India, A
All India Council for Technical Education etc. for coordination and
determination of standards in their own respective fields would not be able
to perform their statutory duty and would make their functioning not only
difficult but almost impossible.

7. The State of Chhattisgarh has filed brief but almost identical counter B
affidavits in both the writ petitions. The main plea taken therein is that in
view of Entry 32 List II of Seventh Schedule to the Constitution, the State
has the legislative competence to make an enactment regarding incorporation
of a University. The impugned Act had been passed to facilitate establishment
of private Universities with a view to create supplementary resources for C
assisti~g the State Government in providing quality higher education. 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. The State Government expected that the Universities would make the
requisite infrastructure including campus, building, etc. and recruit qualified
staff so as to provide higher education in order to achieve the object for D
which the Universities .were established. However, the 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. The State
Legislature, accordingly, enacted the Chhattisgarh Niji Kshetra E
Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004.
After expiry of the time limit fixed in the aforesaid amending Act, 59
Universities were de-notified on account of their failure to comply with the
amended provisions. It is further averred that after the Act had been amended
in the year 2004, the petitioners' grievance has been completely met and
consequently the writ petitions deserve to be dismissed. F
8. Before we advert to the principal submission oflearned counsel for
the parties regarding the vires of Section 5 and 6 of the Act, it is necessary
to take note of the relevant constitutional provisions dealuig with education
and Universities, both under Government of India A~t, 1935, and the
Constitution. G
SEVENTH SCHEDULE OF GOVERNMENT OF INDIA ACT, 1935

LIST I - FEDERAL LEGISLATIVE LIST

12. Federal agencies and institutes for the following purposes, that is H
46 SUPREME COURT REPORTS [2005] 2 S.C.R.

A to say, for research, for professional or technical training, or for l,

the promotion of special studies.

13. The Banaras Hindu University and the Aligarh Muslim University.

LIST II - PROVINCIAL LEGJSLA TIVE LIST

B 17. Education including Universities other than specified .in paragraph
13 of List I.
33. The incorporation, regulation, and winding up corporations (not
being Corporations specified in List :I or Universities);
unincorporated trading, :IHerary, scientific, religious and other
c societies and associations; co-operative societies. .......
'
SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA
UST I - UNION UST

63. The institutions known at the commencement of this Constitution
as the Banaras Hindu University, the Aligarh Muslim Univ1ersity
D
and the Delhi University; the Univ.ersity established in pursuance
·Of article 371E; any other institution declared by Parliament by
Jaw to be an institution of national importance.
64. ·Institutions for scientific or technical education financed by the
Government of .India wholly or in :part and declared by Parliament
E
by law to be institutions of national importance.

65. Union agencies and institutions for -

(a) professional, vocational or technical .training, including the
training of police officers; or .
F
(b) the promotion of special studies ·Of research; or

(c} scientific or technical assistance iri the investigation or
detection of crime.

66. Co-ordination and determination of standards in institutions for
G higher education or r.esearch and scientific and technical
education.

UST II - STATE UST

11. Education including universities, subject to the provisions of
H Entries 63., 64, 65 and 66 of List I and Entry 25 of List m.
PROF. YASHPAL v. STATE [G.P. MATHUR, .I.] 47

(This Entry was deleted by Forty-second Amendment Act) A
32. Incorporation, regulation and winding up of corporation, other
than those specified in List I, and universities; unincorporated
trading, literary, scientific, religious and other societies and
associations; co-operative societies.

---- LIST III - CONCURRENT LIST

25. Education, including technical education, medical .education and
B

universities, subject to the provisions of entries 63, 64, 65 and 66
of List I; vocational and technical training of labour.

The Constitution (Forty-second Amendment) Act, 1976 which came C
into force on 3.1.1977 omitted Entry 11 from List II and transferred that
subject to be combined with Entry 25 of List III.

9. The foundation for a federal set up for the nation was laid in the
Government of India Act, 1935. though in every respect the distribution of D
legislative power between the Union and the States as envisaged in the 1935
Act has not been adopted in the Constitution but the basic framework is
same. It will be seen that Entry 17 in List II of Seventh Schedule in
Government of India Act specifically provided for Universities and the same
is now part of Entry 32 in List II of the Seventh Schedule of the Constitution.
Entries 17 and 33 of List ll of Government of India Act have been combined E
and made one composite entry (Entry 32) in List II of the Seventh Schedule
of the Constitution.

10. How the word "Universities" occurring as a legislative head in the
Seventh Schedule should be interpreted, one has to look to the legislative
practice regarding interpretation ofConstitUtional entries. For this purpose, it F
wiil be useful to refer to some well-known decisions.

In South Carolina v. United States; .. (1905) 199 US 437, the principle
was stated as under :

"To determine the extent of the grants of power, we must, G
therefore, place ourselves in the position of the men who framed and
adopted the Constitution, and inquire what they must have understood
to be the meaning and scope of those grants."

In Ex parte Grossman, (1925) 267 US 87, the U.S. Supreme Court
H
48 SUPREME COURT REPORTS {2005) 2 S.C.R.

A observed that the language of the Constitution cannot be interpreted safely
except by reference to the common law and to British institutions as they
were when the instrument was framed and adopted. In Croft v. Dunphy,
(1933) AC 156, it was held as under :

"When a power is conferred to legislate on a particular topic it is
B important, in determining the scope of the power, to have regard to
what is ordinarily treated as embraced 'within that topic in legislative
practice and particul~rly _in the legislatiye practice of the State which
has conferred the power. Thus in considering what might be
appropriately and legitimately enacted in relation to "bankruptcy and
insolvency" it was considered relevant to discuss the usual co1t1tents
c of bankruptcy statutes."

Similarly,in Wallace Brothers and Co. Ltd. v. Commissioner of Income-
/ax, Bombay, AIR (1948) PC 118, the Judicial Committee observed that
where Parliament has conferred a power to legislate on a particular topic it
D is permissible and important in determining the scope and meaning of the
power to have regard to what is ordinarily treated as embraced within that
topic in the legislative practice of the United Kingdom. The object is to
ascertain the general conception involved in the words in the enabling Act.

I I. In Constitutional Law of India by Seervai, the learned author has
E said in para 2.12 (3rd ed.) that the golden rule of interpretation is that words
should be read in their ordinary, natural and grammatical meaning subject to
the rider that in construing words in a Constitution conferring legislative
power the most liberal construction should be put upon the words so that they
may have effect in their widest amplitude. This is subject to certain excer1tions
F and a restricted meaning may be given to words if it is ·necessary to pr.event
a conflict between two exclusive entries.
'I ;,.

12. The framers of the Constitution having adopted (with some
modification) the legislative entries on Universities from the Govemm~:nt of
India Act, 1935 made by the British Parliament, the full content and ampl.itude
G, of the entry can be comprehended by examining how a University is
understood and what'is its concept in U.K. and U.S.A. whose pattern was
followed in several matters and which the founding fathers had in their mind.

13. In Volume 15 Halsbury's Laws of England (Fourth ed. Reissue)
what is a University and how it is incorp?rated is described as under.;
H
PROF. YASHPAL v. STATE [G.P. MATHUR, J.] 49
Para 256. Generq/. A university is the whole body of teachers and scholars A
engaged, at a particular place, in giving and receiving instruction
in the higher branches of learning; such persons associated
together as a society or corporate body, with definite organization
and acknowledged powers and privileges (especially that of
conferring degrees), and forming an institution for the promotion B
of education in the higher or more impor:int :>rnnches of learning;
also, the colleges, buildings and other property belonging to such
a body. Although the institutions to which it refers are readily
identifiable, precise and accurate definition is difficult. The
essential feature of a university seems to be that it was
incorporated as such by the sovereign power. C
Other attribu~es of a university appear to be the admission
of students from all parts .of the world, a plurality of masters, the
teaching of one at least of the higher faculties, namely theology,
law or philosophy (which in some definitions are regarded as
identical) and medicine, provision for residence and the right to D
confer degrees, but possession of these attributes will not make
an institution a university in the absence of any express intention
of the sovereign power to make it one. A university involves the
relation of tutor and pupil; it is charged with the supervision and
upbringing of the pupil under tuition. Incorporation was anciently
effected by papal grant or charter, and later by royal charter or E
Act of Parliament.

The practice adopted in the case of the most recent
foundations· is to incorporate the university by royal charter, to
which there is annexed a schedule containing the original statutes
of the university, and thereafter to obtain the passing· of a local If'
Act of Parliament vesting in the university the property and
liabilities of any institution which it replaces and making other
necessary provisions.

A copy of any application for a charter for the foundation
of any college or university which is referred by the Queen in G
Council for the report of a committee of the Privy Council must
be laid before Parliament, together with a copy of the draft charter,
for not less than 30 days before the committee reports upon it.

In 15A American Jurisprudence 2d "University" has been defined as
under: H
so SUPREME COURT REPORTS (2005] 2 S.C.R.

A Para 1. Definitions.

Properly speaking, a "university" is an aggregation or
union of colleges. It is an institution in which the education
imparted is universal, embracing many branches, such as the
arts, sciences, and all manner of higher learning, and which
B possesses the power to confer degrees indicating proficiency in
the branches taught.
The word "college" has been said to be employed in the
United States to indicate an institution of learning, having
co~orate powers, and possessing the right to confer degrees,

c and which, with reference to its educational work, consists of the
trustees, teachers, and scholars, all of whom make up the
membership of the college and represent its active work. The
term "college" may also be used to indicate a building, or group
of buildings, in which scholars are housed, fed, instructed, and
governed while qualifying for university degrees, whether the
D university includes a number of colleges or a single college. In
a broad sense, the terms "college" and "university" convey the
same idea, differing only in grade, with each indicating an
institution of learning consisting of trustees, teachers, and scholars
as making up its membership and representing its active work,
E or an institution engaged in imparting knowledge to resident
students and possessing the right to confer degrees.

In the footnote to this paragraph reference is made to a decision which
has some kind of similarity with the case in hand and the footnote reads as
under :
F
A school offering correspondence courses in professional
and other educational subjects, sending students textbooks and
lessons to study, giving examinations based thereon, and awarding
diplomas or degrees, but having no entrance requirements, resident
students, library, laboratory, or faculty, is not a university. Branch
G v. Federal Trade Com., (CA7) 141 F2d 31.
In the New Encyclopedia Britannica (15th ed) "University" has been
described as under :

(Page 165) University, institution of higher education, usually comprising a
-H liberal arts and sciences college and graduate and professional
PROF. YASHPALv. STATE [G.P. MATHUR, .I.] 51
.
schools and having the authority to confer degrees in various A'
fields of study.

(Page 186) Universities and students looked toward ways of creating
opportunities for' a satisfying career outside traditional roles for B
graduates in scholarship, teaching, and the professions. The
university's basic traditional functions remain unchanged -
enabling students to learn from their cultural heritage, helping
them to realize their intellectual and creative abilities, and
encouraging them to become humane and responsible people.
The university expands knowledge across the entire spectrum of q
disciplines, and it can add to the understanding and enjoyment of
life. It continues to be needed for imaginative solutions to the
problems of society.

14. Shortly after independence on 4.11.1948 the Government of India
constituted a Commission known as "University E~ucation Commission" of D
which Dr. S. Radhakrishnan was. the Chairman. Dr. Tara Chand, former
Vice-Chancellor, Allahabad University, Dr. Zakir Hussain, Vice-Chancellor,
Aligarh Muslim University, Dr. A. Lakshmanaswami Mudaliar, Vice-
Chancellor, Madras University, Dr. Meghnad Saha, Dean, Faculty of Science,
Calcutta University and 5 other eminent personalities in the field of education E
were its members. The Commission gave a very long and exhaustive report.
Chapter II of the report deals with the aims of University education and Para
2 of Part I is illustrative and the same is being reproduced below :

"2. Universities as the Organs of Civilization-He indeed must be
blind who does not see that, mighty as are the political changes, far F
deeper are the fundamental questions which will be decided by what
happens in the universities. Everything is being brought to the test of
reason, venerable theologies, ancient political institutions, time-
honoured social arrangements, a thousand things which a generation
ago looked as fixed as the hills. If India is to confront the confusion G
of our time, she must turn for guidance, not to those who are lost in
the mere exigencies of the passing hour, but to her men of letters, and
men of science, to her poets and artists, to her discoverers and
inventors. These intellectual pioneers of civilization are to be found
and trained in the universities, which are the sanctuaries of the inner
life of the nation." H
52 SUPREME COURT REPORTS [2005] 2 S.C.R.

A In the introductory paragraph of Chapter IV dealing with standards of
teaching, the Commission recorded its views in the following words :

The need for High Standards.

Introduction • It is the primary duty of a university to maintain the
B highest standards of its teaching and examinations. A university is a
place of higher education where the personality and capacities of the
students are developed to the utmost by teachers who should
themselves be at work at the frontiers of knowledge in their respective
fields. The success of a university is to be judged as much by the type
of graduate it turns out as by the amount and quality of research
c contributed by its teachers and research students. It must be clearly
recognized that there is no conflict involved between the twofold
function of a university to educate its members and to advance the
frontiers of knowledge the two functions are, in fact, complementary.
Unless high standards of teaching and examinations are maintained,
D research will suffer, since research can continue uninterruptedly only
if there is a regular supply of graduates well prepared by general
education for specialized research work. On the other hand, if research
is neglected by teachers, their teaching will lack vitality and will
rapidly become stale. A degree must always be what a university
makes it by the kind of teaching it imparts and the type of intellectual
E and social life it provides for its members. If our universities are to
be the makers of future leaders of thought and action in the country,
as they should be, our degrees must connote a high standard of
scholarly achievement in our graduates.

The Commission noted that many of the Universities did not compare
F favourably with the best of British and American universities in respect of
their teaching and examination standards. Unless highest standards of teaching
in the Universities are ensured, the degree given by them will not command
recognition and respect. The Commission observed :

" ..... Our universities should maintain the academic character of their
G
work on a level recognized as adequate by the universities of other
countries. Universities are our national institutions, and to keep up
our national prestige, our degrees must be such as to command
international recognition ..... "

H. 15. The Government of lndia constituted a Committee in Decefuber,
PROF. YASHPAL v. STATE [G.P. MATHUR . .I.] 53
1961 to consider broadly the organizational structure of the Universities in A
India and to prepare the outline of a "Model Act" suited to their role and
functions of which Dr. D.S. Kothari, Chairman, UGC was the Chairman and
several other persons who were either Vice-Chancellors of Universities or
were connected with the field of education were members: In the concluding
part of the First Chapter, the Committee noted as under :
B
" ..... The function of the university is not only to preserve, disseminate
and advance knowledge but also to furnish intellectual leadership and
moral tone to society. No less important is the role of universities in
promoting national integration and a common culture, and in bringing
about the social transformation that is desired. Finally, universities C

.. have also to provide trained personnel to advance the country's
prosperity by making full use of modern knowledge. The
organizational pattern must enable the universities to achieve these
objectives."

These reports prepared by most learned and eminent educationists in D
post independence era highlight the primary function of the Universities viz,
teaching and research and to provide trained and qualified personnel for the
progress of the nation.

16. Though incorporation of a University as a legislative head is a State
subject (Entry 32 List If) but basically University is an institution for higher E
education and research. Entry 66 of List I is coordination and determination
of standards in institutions for higher education or research and scientific iind
technical institutions. There can thus be a clash between the powers of the
State and that of the Union. The interplay of various entries in this regard in
the three lists of the Seventh Schedule and the real import of Entry 66 of List
I have been examined in several decisions of this Court. In Gujarat University F.
v. Shri Krishna, AIR (1963) SC 703, a decision by a Constitution ~ench
rendered prior to Forty-second Amendment when Entry I I of List II was in
existence, it was held that Item No. 63 to 66 of List I are carved out .of the
subject of education and in respect of these items the power to legislate i~
vested exclusively in the Parliament. The use of the expression "subject to" G
• in item I I of List II of the Seventh Schedule clearly indicates that the
legislation in respect of excluded matters cannot be undertaken by the State
Legislatures. In para 23, the Court held as under :

" ...... Power of the State to legislate in respect of education including
Universities must to the extent to which it is entrusted to the Union H
54 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Parliament, whether such power is exercised or not, be deemed to be
restricted. If a subject of legislation is covered by items 63 to 66 even
if it otherwise falls within the larger field of "education including
Universitie.s" power to legislate on that subject lnust lie with the
Parliament. .........................................,.......................... ;................................. .
............................... Item 11 of List II and item 66 of List I must be
B harmoniously construed. The two entries undoubtedly overlap; but to
·the extent of overlapping, the power conferred by item 66 List I must
prevail over the power of the State under item 11 of List II. It is
manifest that the excluded heads deal primarily with education in
institutions of national or special importance and institutions of higher
c education including research, sciences, technology and vocational
training of labour.

The following observations in paras 24 and 25 highlight the supremacy
of legislation made by the Parliament with reference to Entry 66 :

D "24 ....... The validity of the State legislation on University education
and as regards the education in technical and scientific institutions
not falling within Entry 64 of List I would have to be judged having
regard to whether it ~impinges on the field reserved for the Union
under Entry 66. In other words, the validity of State legislation would
depend upon whether it prejudidally affects co-ordination and
E determination of standards, but not upon the existence of some definite
Union legislation directed to achieve that purpose. If there be Union

•
legislation in respect of co-ordination and determination of standards,
that would have paramountcy over the State law by virtue of the first
part of Ar. 254(1); even ifthat power be not exercised by the Union
F Parliament the relevant legislative entries being in the exclusive lists,
a State law trenching upon the Union field would still be invalid.

25 ...... Item No. 66 is a legislative head and in interpreting it, unless
it is expressly or of necessity found conditioned by the words used
therein, a narrow or restricted interpretation will not be put upon the
G generality of the words. Power to legislate on a subject should normally
be held to extend to all ancillary or subsidiary matters which can
fairly and reasonably be said to be comprehended in that subject.
Again there is nothing either in item 66 or elsewhere in the Constitution
which supports the submission 'that the expression "co-ordination"
must mean in the context in which it is used merely evaluation, co-
H ordination in its normal connotation means harmonising or bringing
PROF. YASHPAL v. STATE [G.P. MATHUR, .I.] 55

-, into proper relation in which all the things co-ordinated participate in
a common pattern of action. The power to co-ordinate, therefore, is
A

not merely power to evaluate, it is a power to harmonise or secure
relationship for concerted action. The power conferred by item 66
List I is not conditioned by the existence of a state of emergency or
unequal standards calling for the exercise of the power."
B
17. The same question was also examined in considerable detail in
State of Tamil Nadu and Anr. v. Adhiyaman Educational and Research
Institute, [ 1995) 4 SCC I04 and the conclusions drawn were summarized in
para 41 of the reports and sub-paras (i) and (ii) thereof are being reproduced
below:
c
(i) The expression 'coordination' used in Entry 66 of the Union List
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 D
action not only for removal of disparities in standards but also
for preventing the occurrence of such disparities. It would,
therefore, also 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
abs.ence of the valid compelling reasons, it must be given its full E
effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the

- Central legislation though the former is purported to have been
made under Entry 25 of the Concurrent List but in effect
encroaches upon legislation including subordinate legislation made F
by the Centre under Entry 25 of the Concurrent List or to give
effect to Entry 66 of the Union List, it would be void and
inoperative.

18. In Osmania University Teachers Association v. State of Andhra
Pradesh and Anr., [ 1987) 4 SCC 671, the Court reiterated that it was the G
exclusive responsibility of the Central Government to determine the standards
for higher education and the same should not be lowered at the hands of any
particular State as it was of great importance to national progress. After
referring to the Constitution Bench decision in Kera/a State Electricity Board
v. Indian Aluminium Co., [1976) I Sec 466, where it was held that when an H
56 SUPREME COURT REPORTS (2005] 2 S.C.R.

A entry is in general terms in List II and part of that entry is in specific terms
in List I, the entry in List I takes effect notwithstanding the entry in List II,
the Court held as under in para 14 of the reports :

"14. Entry 25 List 1II relating to education including technical
education, medical education and universities has been made subject
B to the power of Parliament to legislate under Entries 63 to 66 of List
I. Entry 66 List I and Entry 25 List III should, therefore, be read
together. Entry 66 gives power to Union to see that a required standard
of higher education in the country is maintained. The standard of
Higher Education including scientific and technical should not be

c lowered at the hands of any particular State or States. Secondly, it is
the exclusive responsibility of the Central Government to coordinate
and determine the standards for higher education. That power includes
the power to evaluate, harmonise and secure proper relationship to
any project of national importance. It is needless to state that such a
co-ordinate action in higher education with proper standards, is of
D paramount importance to national progress. It is in this national interest,
the legislative field in regard to 'education' has been distributed
between List I and List III of the Seventh Schedule."

19. The interplay of Entry 66 List I and Entry 25 List III was again
examined by a Constitution Bench in Dr. Preeti Srivastava and Anr. v. State
E of MP. and Ors., [1999] 7 sec 120 in the context of lowering of standards
by the State for admission to a Post Graduate course in a Medical College
and it was held that the State cannot while controlling education in the State
impinge on standards in institutions for higher education because this is
exclusively within the purview of the Union Government While considering
F the question whether norms for admission have any connection with the )

standards of education and that they are only covered by Entry 25 of List Ill, I ,
it was observed that any lowering of the norms of admission does have an
adverse effect on the standards of education in the institutions of higher
education. The standard of education in an institution depends on various
factors like, (i) the caliber of teaching staff; (ii) a proper syllabus designed
G to achieve high level of education in a given span of time; (iii) the student-
teacher ratio; (iv) equipment and laboratory facilities; (v) caliber of the students
admitted; (vi) adequate accommodation in the institution; (vii) the standard
of examinations held including the manner in which the papers are set and
examined; and (viii) the evaluation of practical examinations done. It was
H pointed out that education involves a continuous interaction between the
PROF. YASl-IPAL v. STATE [G.P. MATHUR . .I.] 57
---'
'
teachers and the students. The base of teaching, the level to which teaching A
can rise and the benefit which the students ultimately receive depends as
much on the caliber of the students as on the caliber of the teachers and the
availability of adequate infrastructural facilities.

20. 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 B
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-
ordinatio.n and determination of standards in institutions for higher education C
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.
D
21. 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 E
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 imd F
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 011 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 G
more urgent on this account.

In the second para it is said that the Commission will also h11ve 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 H
r
.~
58 SUPREME COURT REPORTS [2005] 2 S.C.R. ·,
A 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.

22. The preamble of the UGC Act says - an Act to make provision for
the coordination and determination of standards in Universities and for that
B 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
C 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 ancj 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
I
D sub-sections (a) to U) thereof. Sections 22 and 23 are important. and are being .--
t

reproduced below :

22. Right to confer degrees - (l) The right of conferring or granting
degree shall be exercis~d:only···by a Universityest,ablishecj:or
inctirporated by 6r ·t.1nder 'a· Central Aet, a· Prbvii:ici~"i Act or a· ·~

E State Act or an institution deemed to be a University under section
3 or an institution specially empowered by an Act of Parliament
to confer or grant degrees.
(2) Save as provided in sub-section (I), no person or authority shall
confer, or grant; or hold himself or itself out as entitled to confer
F or grant any degree.
(3) For the purpose of this section, "degree' means any such degree
as may, with the previous approval of the Central Government,
be· specified in this behalf by the Commission by notification in
the Official Gazette."
G 23. Prohibition of the use of the word "University" in certain cases.
No institution, whether a corporate_ body or not, other than a
University established or incorporateo by or under a Central Act,
a Provincial Act or a State Act shall be entitled to have the word
"University" associated with its name in any manner whatsoever:
H
PROF. YASHPAL v. STATE [G.P. MATHUR • .I.] 59
Provided that nothing in this section shall, for a period of two A
years from the commencement of this Act, apply to an institution
which immediately before such commencement, had the word
"University" associated with its name.

23. 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 B
- 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. What is a "degree" and what it connotes is not given in the
UGC Act but the meaning of the word as given in dictionaries and standard
books is as under : ·
c
Webster's Third New A title conferred upon students by a college,
International Dictionary university, or professional school upon
completion of a unified programme of study
carrying a specified minimum of credits,
passing of certain examinations, and often D
completion of a thesis or other independent
research project.
2. A grade or class of mem.bership attained in a
ritualistic order or society denoting a stage
of proficiency often after a set ordeal or E
examination.
Wharton's Law Lexicon The state of a person, as to be a barrister-at-
law, or to be a Bachelor or Master of Arts of
a University.

) Chambers's Twentieth A mark of distinction conferred by F
universities,
Century Dictionary whether earned by
examination or granted as a mark of honour.
P. Ramanatha Aiyar A mark of distinction conferred upon a
student. G
Law Lexicon (2nd Ed) for proficiency in
some art or science; University diploma of
specified proficiency.

H
60 SUPREME COURT REPORTS [2005) 2 S.C.R.

A Encyclopedia Americana

"DEGREE" - the title conferred by a college or university,
signifying that a certain step or grade has been attained in an area of
learning. The award of a diploma conferring the bachelor's degree
marks completion of undergraduate study. The master's and doctor's
B . degrees reward graduate study. Other degrees constitute evidence of
preparation for professional work - the M.D. (doctor of medicine) for
example.

In the 20th century, however, the M.A. is granted in American
universities and in those of England and the Commonwealth of Nations
C (apart from Oxford and Cambridge) on the basis of study beyond the
B.A and the presentation (usually) of a thesis.· An exception is
Scotland, where the M.A. has been the first degree conferred in all
six universities ever since their founding. The bachelor of philosophy
and bachelor of letters degrees are given for work beyond the M.A.

D The N_ew Encyclopedia Britannica

"Degree" in education, any of several titles conferred by colleges
and universities to indicate th(( extent of academic achievement. The
hierarchy of degrees, dating from the 13th century, once resembled
· the medieval guild system. In the United States and Great Britain, the
E modern gradation of academic degrees is usually bachelor (or
baccalaureate), master, and doctor. With some exceptions, intermediate
degrees,· su·ch as those of bachelor and master, have been abandoned
in the universities of continental Europt>.

A degree conferred by a University i~ a proof of the fact that a person
F has studied a course of a particular higher level and has successfully passed r
the examination certifying his proficiency in the said subject of study to such
level. In the case of a Doctorate degree, it certifies that the holder ·of the
degree has attained a high level of knowledge and study in the concerned
subject by doing some original research work .. A University degree confers
G a kind of a status upon a person like a graduate or a post-graduate. Those
who have done research work and have obtained a Ph.D., D.Lit., or D.Sc.
degree become entitled to write the word "Doctor" before their name and
command certain amount of respect in society as educated and knowledgeable
persons. That apart the principal advantage of holding a University degree is
in the matter of employment, where a minimum qualification like a graduate,
H
PROF. YASHPAL v. STATE [G.P. MATHUR . .I.] 61
post-graduate or a professional degree from a recognized institute i's prescribed, A
Even for those who do not want to take up a job and want to remain in
private profession like a doctor or lawyer, registration with Medical Council
or Bar Council is necessary for which purpose a degree in medicine or law,
as the case may be, from an institution recognized by the said bodies is
essential. An academic degree is, therefore, of great significance and value B
for the holder thereof and goes a long way in shaping his future. The interest
of society also requires that the holder of an academic degree must possess
the requisite proficiency and expertise in the subject which the degree certifies.

24. Mere confennent of degree is not enough. What is necessary is that
the degree should be recognized. It is for this purpose that the right to confer C
degree has been given under Section 22 of UGC Act only to a University
established or incorporated by or under a Central Act, Provincial Act or State
Act or an institution deemed to be a University under Section 3 or an institution
specially empowered by an Act. of Parliament to confer or grant degrees.
Sub-section (3) of this Section provides that "degree" means any such degree
as may, with the previous approval of the Central Government, be specified D
in this behalf by the Commission by notification in the Official Gazette. The
value and importance of such degrees which are recognized by Government
was pointed out by a Constitution Bench in Azeez Basha v. Union of India,
AIR (1968) SC 662.

25. Having seen what is the concept of a University and what is the E
value of a degree awarded by it, the Scheme and the provisions of the
impugned Act may now be examined. The Preamble of the Act says that it
is an Act to provide for establishment of self financed private Universities for·
imparting Higher Education and to regulate their functions and for matters
connected therewith or incidental thereto. Some of the provisions of the Act p
which ·have a bearing on the controversy involved are being reproduced
below~

Section 2. In this Adhiniyam, unless the context otherwise requires -
(a) "Ordinance" means an Ordinance of the University;
G
(b) "Sponsoring Body" in relation to a University means-
(i) a Society registered under the Madhya Pradesh Societies
Registrikaran Adhiniyam, 1973 (No. 44 of 1973)

(ii) any. Public Trust; or
H
62 SUPREME COURT REPORTS (2005) 2 S.C.R.

A (iii) a Company registered under Secti0n 25 of the Companies
Act, 1956 (No. I of 1956);

(c) "Statute" means a Statute of the University;

(d) "University" means a University established under sub· section
(1) of Section 5.
B
3. The objects ofthe University shall be-

I. to provide instructions, teaching and training in Higher Education
and make provisions for research, advancement and dissemination
of knowledge;
c 2. to create higher levels of intellectual abilities;

3. to establish state of the art facilities for education and training;

4. to carry out teaching and research and offer continuing education
programmes;
D 5. to create centres of excellence-for research and devek>pment and
for sharing•knowledge and its application;

6. to provide consultancy to the industry ~nd public organizations;

7. to establish main campus in Chhattisgarh and to have study centres
E at different places in India and other countries;

8. ' to establish examination centres;
9. to institute degrees, diplomas; certificates and other academic
distinctions on the basis of examination, or any other method of
evaluation; (
F
10. to pursue any other objective as may be approved by the.State
Government;

l l. to ensure that the standard of the degrees, diplomas, certificates
and other academic distinctions are not lower than those laid
down by AICTE/NCTE/UGC/MCI and Pharmacy Council etc;
G
4. (1) An application containing the Project Report to establish A
University for carrying out any or all of the objects enumerated
in section 3 of this Adhiniyam shall be made to the State
Government by the Sponsoring Body along with such fee as may
be prescribed ..
H
PROF. YASHPAI., v. STATE [G.P. MATHUR, J.] 63

(2) The Project Report shall contain the following particulars, namely- A
(a) the objects of the University along with the details of the
Sponsoring Body;

(b) the extent and the status of the University and the availability
of land; B
(c) the nature and the type of programmes of study and research
to be undertaken in the University during a period not less
than the next five years;

(d) the nature of faculties, courses of study and research proposed
to be started;
c
(e) the campus development such as building, equipment and
structural amenities;

(f) the phased outlays of capital expenditure for a period not
less than the next five years; D

(g) the item-wise recurring expenditure, sources of finance and
estimated expenditure for each student;

(h) the scheme for mobilizing resources and the cost of capital
thereto and the manner of repayments to the Sponsoring E
Body and other sources;

(i) the scheme for the generation of funds internally through
the recovery of fee from students, revenues anticipated from
consultancy and other activities relating to the objects of the
University, and other anticipated incomes;
F
,.,
G) the details of expenditure on unit cost and the extent of
concessions or rebates. in fee or freeship and scholarship for
students belonging to the Scheduled Tribes and Scheduled
Castes, belonging to economically weaker sections, in lieu G
·of land grants if any, from the State Government, subject to
the condition that the number of students getting concessions

- and freeships or scholarships shall not be less than twenty
two and one half percent of the total number of seats. The
proposed fee structure shall also indicate the rationale for
the varying rates of fee that would be levied on non resident H
64 SUPREME COURT REPORTS [2005) 2 S.C.R.

_A Indians and students of other nationalities;

(k) the years of experience and expertise in the concerned
disciplines at the command of the Sponsoring Body as well
as the financial resources;

B (I) the system to select students for admission to the courses of
study at the University; .

(m) such other details as may be prescribed by rules framed
under this Adhiniyam. ·

c (3) The State Government, on receipt of the Project Report shall
make such enquiry as it may deem necessary within forty five days
from the date of submission of the Project Report.

(4) If the State Government is satisfied with the proposal to establish
the University, it may, subject to such conditi~ns as may be specified,
D accord the sanction for the same.

5. (1) The State Government may by notification in the Gazette establish
a University by such name and with such jur~sdiction and location
of campus as may be specified therein having regard to -

E. (a) the desirability to establish a University;

(b) recognition or authorization as may be required under any
other Jaw for the time being in force to conduct the syllabus
and to grant _degrees or diplomas or awards.

(2) Every notification issued under sub-section (I) shall be laid on
F the table of the Legislative Assembly.

6. (I) Every University established under sub-section (I) of section 5
shall be a body corporate by the name notified under the said
section having perpetual succession and a common seal, and
may sue and be sued by the said name.
G
(2) the University established under sub-section (I) of section 5 may,
with the prior approvai of the State Government, affiliate any
College or other institution or set up more than one campus."

Section 9 provides that the University shall not be entitled to receive
-
H any grant cir other financial assistance from the Central Government, State
..
PROF. YASHPAL v. STATE [G.P. MATHUR . .I.I

Government or any other authority except for meeting any amount towards A
the fee payable by students belonging to socially disadvantaged or weaker
sections of society or for conducting any study for research purposes, etc.

26. Section 3 of the Act enumerates the objects of the University. Sub-
section (I) of Section 4 provides that an application containing the Project
Report to establish a University for carrying out ar.y or all of the objects B
enumerated in Section 3 of the Act shall be made to the State Government
by the sponsoring body. Sub-section (2) of Section 4 provides that the Project
Report shall contain the particulars which have been enumerated from clauses
(a) to (m) in the said Sub-section. The Project Report is to merely indicate
the availability of the land and also the details of the Scheme for mobilization C
of resources and generation of funds. The Project Report is in the nature of
a proposal where some details have to be furnished regarding the type of
courses of study and research to be undertaken in the University during the
period not less than next five years, the nature of faculty and courses of study
proposed to be started, the campus development such as building, equipment
and structural amenities proposed to be made and phased outlays of the D
capital expenditure for a period not Jess than next five years. Sub-section (3)
says that the State Government on receipt of the Project Report shall make
such enquiry as it may deem necessary within 45 days from the date of
submission of the Project Report. Sub-section (4) says that if the State
Government is satisfied with the proposal to establish the University, it may, E
subject to such conditions as may be specified, accord sanction for the same.
Therefore, the requirement of Section 4 is submission of an application
containing Project Report which will merely indicate availability of land and
some proposals and schemes for generation of funds and mobilization of
resources and also proposal for development of building etc. and courses of
study proposed to be started. It is this Project Report which merely contains F
some proposals and schemes for future implementation which is accorded
sanction by the State Government. Thereafter comes Section 5 which says
that the State Government may by notification in the Gazette establish a
University by such name and with such jurisdiction and location of campus,
as may be specified therein having regard to the desirability to establish a G
University. The effect of these provisions is that a Project Report on paper
only, which will merely be a proposal or a scheme for doing something in
future, will be notified as a University by issuing a notification to that effect
in the Gazette. Sub~section (I) of Section 6 confers some kind of a juristic
personality on the University so created by notification in the Gazette which
in substance and reality is a Project Report by saying that the University so H
66 SUPREME COURT REPORTS [2005] 2 S.C.R.

A established shall be a body corporate by the name notified having perpetual
succession and a common seal and may sue and be sued by the said name.
Sub-section (2) of Section 6 confers a very wide power on the University so
created to affiliate any college .or other institutions or set up more than one
campus with the approval of the State Government.

B 27. The State Legislature is undoubtedly empowered to legislate and
make an enactment for incorporation and establishment of Universities in
view of Entry 32.of List II and Entry 25 of List III. The "University" as a
topic of legislation has not been introduced for the first time in the Seventh
Schedule of the Constitution but was already there in the Government of
C India Act, where Entry 13 of List I related to Banaras Hindu University and
Aligarh Muslim University and Entry 17 of List II was education including
Universities other than those specified in Entry 13 bf List I. The framers of
the Constitution had the same concept of "University" in their mind as was
there in the Government of India Act when they made the relevant entries in
the Seventh Schedule of the Constitution. Keeping in view the principles of
D legislative practice, the word "University" should be given the same meaning
as it was generally understood at the relevant time having due regard to what
is ordinarily treated as embraced within that topic or subject.

28. As shown earlier, University is a whole body of teachers and scholars
engaged· at a particular place in giving and receiving instructions in higher
E 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, building and other
property belonging to such body. Other necessary attributes of University are
F plurality of teachers teaching more than one higher faculties and other facilities
for imparting instructions and rese.arch, provision for residence and must
have certain standard of instructions providing for graduate and post-graduate
levels of study. It pre-supposes existence of a campus, classrooms, lecture
theatres, libraries, laboratories, offices, besides some playgrounds and also
.•
sport facility for overall development of personality of the students. However,
G under the provisions of the impugned Act, a proposal which is on paper and
merely gives some kind of a plan or scheme to be done in future is notified
as a University. When the Constitution has conferred power on the State to
legislate on incorporation of University, any Act providing for establishment
of the University must make such provisions that only an institution. in the
H sense of University as it is generally understood with all the infrastructural
PROF, YASHPAL v. STATE [G.P. MATHUR . .I.] 67
facilities, where teaching and research on wide range of subjects and of a A
particular level are actually done, acquires the status of a University. The
impugned Act does not at all establish a University, yet by issuing a notification
conferring the legal status of a University to a Project Report (which is on
paper only) bestows upon it a right to confer a degree, which right it gets by
virtue of Section 22 of the UGC Act. The manner in which a University is B
notified by issuance of a Gazette notification under Section 5 and conferment
of a juristic personality under Section 6 of the Act is clearly contrary to the
constitutional scheme and is not contemplated by Article 246 of the
Constitution.

29. The State Legislature can make an enactment providing for C
incorporation of Universities under Entry 32 of List II anc\ also generally for
Universities under Entry 25 of List III. The subject "University" as a legislative
head must be interpreted in the same manner as it is generally or commonly
understood, namely, with proper facilities for teaching of higher level and
continuing research activity. An enactment which simply clothes a proposal
submitted by a sponsoring body or the sponsoring body itself with the juristic D
personality of a University so as to take advantage of Section 22 of UGC Act
and thereby acquires the right of conferring or granting academic degrees but
without having any infrastructure or teaching facility for higher studies or
facility for research is not contemplated by either of these Entries. Sections
5 and 6 of the impugned enactment are, therefore, wholly ultra vires being E
a fraud on the Constitution.

30. Entry 66 which deals with co-ordination and determination of
standard in institutions for higher education or research and scientific and
technical institutions is in Union List and the Parliament alone has the
legislative competence to legislate on the said topic. The University Grants F
Commission Act has been made with reference to Entry 66 (See Prem Chand
Jain v. R.K. Chhabra, [1984] 2 SCR 883 and Osmania University Teachers
Association v. State of Andhra Pradesh, [1987] 4 SCC 671). The Act has
been enacted to ·ensure that there is co-ordination and determination of
standards.in Universities, which are institutions of higher learning, by a body G
created by the Central Government. It is the duty and responsibility of the
University Grants Commission, which is established by Section 4 of the UGC
Act, to determine and coordinate the standard of teaching curriculum and
also level of examination in various Universities in the country. In order to
achieve the aforesaid objectives, the role of UGC comes at the threshold. The
course of study, its nature and volume, has to be ascertained and determined H
68 SUPREME COURT REPORTS (2005] 2 S.C.R.

., A before the commencement of academic session. Proper standard of teaching
cannot be achieved unless there are adequate infrastructural facilities in the
campus like classrooms, libraries, laboratories, well-equipped teaching staff
of requisite caliber and a proper student-teacher ratio. For this purpose, the
Central Government has made a number of Rules in exercise of powers
B conferred by Section 25 of UGC Act and the Commission has also made
Regulations in exercise of power conferred by Section 26 of the UGC Act
and to mention a few,_ UGC Inspection of Universities Rules, 1960, UGC
Regulations 1985 regarding the Minimum Standards of Instructions for the
Grant of the First Degree, UGC Regulations, 1991 regarding Minimum
Qualifications for Appointment of Teachers in Universities and Colleges, etc.
C The UGC with the approval of the Central Government and exercising power
under Section 22(3) of the UGC Act has issued a schedule of degrees which
may be awarded by the Universities. The impugned Act which enables a
proposal on paper only to be notified as a University and thereby conferring
the power upon such University under Section 22 of the UGC Act to confer
D degrees has the effect of completely stultifying the functioning of the
University Grants Commission in so far as these Universities are concerned.
Such incorporation of a University makes it impossible for the UGC to perform
its duties and responsibilities of ensuring co-ordination and determination of
standards. In absence of any campus and other infrastructural fa~ilities, the
UGC cannot take any measures whatsoever to ensure a proper syllabus, level
E of teaching, standard of examination and evaluation of academic achievement
of the students or even to ensure that the students have undergone the course
of study for the prescribed period before the degree is awarded to them.

31. The inter se evaluation of merit of candidates is often required to
F be done while making selection for some higher or specialized course of
study or in the matter of employment. One of the important functions to be
performed by the UGC is co-ordination and determination of standards in
institutions for higher education so that some kind of uniformity is maintained
in level of teaching and examination and also award of degrees by various
Universities. The impugned enactment, however, enables a sponsoring body,
G without having any kind of teaching facility to award degrees. In view of
clauses (8) and (9) of Section 3 of the Act, a University can be established
only to establish examination centres or just to institute degrees, diplomas,
certificates and other academic distinctions on the basis of examination er
any other method of evaluation anywhere and without any pre-determined
H standards. The possibility that such Universities which award degrees without
having any teaching facility and without imparting any education will do so
PROF. YASHPAL v. STATE [G.P. MATHUR. J.) 69
only for the purpose of·making money is writ large. The fact that the A
amendments made in the Act in 2004 (referred to later in paragraph 34 of the
judgment) making it mandatory to create an endowment fund of Rs. 2 crores
and having provision of 15 acres of land have been challenged by many
Universities speaks volumes of their intention. Preparing a Project Report on
paper is not a difficult job and any number of sponsoring bodies can be B
created or formed in order to take advantage of the easy opportunity made
available by the impugned Act. Persons with absolutely no knowledge in the
subject may be awarded high degrees or other distinctions like a Ph.D.,
D.Lit., or D.Sc. This is bound to create havoc with the system of higher
education in the country and would result in nullifying the main object for
which University Grants Commission has been established and would render C
many provisions of the UGC Act unworkable and otiose.

32. Any State legislation which stultifies or sets at naught an enactment
validly made by Parliament would be wholly ultra vires. We are fortified in
our view by a: Constitution Bench decision in R. Chitralekha v. State of
Mysore, AIR (1964) SC 1823 where power of the State under Entry 11 List D
II (as it then existed), and Entry 25 List III qua Entry 66 List I came up for
J consideration. Subba Rao, J. after quoting the following passage from Gujarat
University v. Shri Krishna, AIR (1963) SC 703 :

"The State has the power to prescribe the syllabi and courses of
study in the institutions named in Entry 66 (but not falling within E
entries 63 to 65) and as an incident thereof it has the power to indicate
the medium in which instruction should be imparted. But the Union
Parliament has an overriding legislative power to ensure that the
syllabi and courses of study prescribed and the medium selected do
not impair standards of education or render the coordination of such F
standards either on an All India or other basis impossible or even
difficult"

enunciated the following principle defining the contours of the legislative
powers of States vis-a-vis Union so as to steer clear of any overlap or collision:

"This and similar other passages indicate that if the law made by the
G
State by virtue of entry 11 of List II of the Seventh Schedule to the
Constitution makes impossible or difficult the exercise of the legislative
power of the Parliament under the entry "Co-ordination and
determination of standards in institutions for higher education or
research and scientific and technical institutions" reserved to the Union, H
70 SUPREME COURT REPORTS [2005] 2 S.C.R.

A the State law may be bad. This cannot obviously be decided on
speculative and hypothetical reasoning. If the import of the State law
providing for such standards on entry 66 of List I is so heavy or
devastating as to wipe out or appreciably abridge the central field, it
may be struck down. But that is a question of fact to be ascertained
in each case .... "
B
The whole scheme of the impugned Act, especially the effect of Sections
4, 5, 6 thereof and the result which it h~s 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
C clearly shows that the relevant provisions of the Act have completely stultified
the power of the Parliament under Entry 66 to make provision for co-ordination
and determination of standards in institutions for higher education like
Universities, the provisions of the UGC Act and also the functioning of
University Grants Commission. Sections 5 and 6 of the impugned Act are,
therefore, wholly ultra vires the Constitution of India and are liable to be
D struck down.

33. Dr. Dhawan, learned senior counsel for the petitioners in Writ
Petition No. 19 of 2004, has also pointed out certain other infirmities in the
impugned Act. Section 4 provides that a University may be established for
carrying out "any or all" of the objectives enumerated in Section 3 of the
E Adhiniyam. The objectives mentioned in clauses (I) to (5) are the normal
objectives of a University. However, a University cannot be established only
to provide consultancy to the industry and public organizations [clause (6)]
or to establish examination centres [clause (8)] or to institute degrees, diplomas,
certificates and other academic distinctions on the basis of examination or
F any other method of evaluation [clause (9)]. Since sub-section (1) of Section
4 uses the expression "for carrying out any or all of the objects'', it is obvious
that a University can be established only for any one of the aforesaid objectives.
This is clearly a colourable piece of legislation being beyond the legislative
competence of the State legislature as the relevant entries in List. II and List
Ill of Seventh Schedule of the Constitution do not contemplate creation or
G establishment of such kind of a University.

34. The Act was amended by the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004
(hereinafter called "the amending Act"), which was published in the Gazette
ori 17.3.2004. By this amending Act some provisions ·were substituted and
H
PROF. YASHPAL v. STATE [G.P. MATHUR, J.) 71
some new provisions were added. Clauses (e) and (j) inserted in Section 2 A
read as under :

(e) "main campus" means the c~mpus of the university where main
office of the university is situated and where the Vice-Chancellor and
Registrar reside and where not less than three University Teaching
Departments/Schools of sttidies _are located. B
G) "Regulatory Commission" means the Regulatory Commission
established under the Adhiniyam."

Sections 4, 5, 9 and 10 of the amending Act read as under :

"4. For Sub-sections (IO) and (l l) of Section 3 of the Principal
c
Adhiniyam, the following Sub-sections shall be substituted; namely :-

"(I 0) To ensure that the standard of degrees, diplomas, certificates
and other academic distinctions are not lower than these laid down
by AICTE, NCTE, UGC, MCI, Pharmacy Council, and such agency/ D
agencies established by the Central Government for regulation of
education and the Regulatory Commission; and

(11) To pursue any other objective as may be approved by the
Regulatory Commission."
E
5. For Sub-section (1) of Section 4 of the Principal Adhiniyam, the
following Sub-sections shall be substituted; namely :-

"( l) (a) An application containing the Project Report to establish a
university for carrying out any or all the objectives enumerated
in Section 3 of the Adhiniyam shall be made to the Regulatory F
Commission by Sponsoring Body alongwith fee and such form
as may be prescribed , at least one year before the date from
which it intends to start the university.

(b) The Sponsoring Body shall submit alongwith its application
as~W~~ G
(i) Proof of having established an Endowment Fund of Rs. 2
crore;

(ii) Proof of being in possession of 15 acres of land, in case the
main campus is proposed to be established within the
Municipal Corporation Limits of Raipur; or 25 acres of land H
72 SUPREME COURT REPORTS f2005] 2 S.C.R.

A m case the main campus· is proposed to be established
elsewhere in the State and in addition. if the land has been
obtained on lease, the period of lease should be at least 30
years. In case. the Sponsoring Body does not possess the
required land, it shall furnish proof of having deposited an
additional sum of Rs. 2 crore in the manner prescribed.
B Withdrawals out of this additional fund shall be permitted
by the Regulatory Commission for the purchase of land for
the use of the University.

Provided that where the main campus of the University is proposed
c to be established in a Scheduled Area of the State, only fifty percent
of the amounts in (i) and (ii) above need to be deposited.

(c) The Endowment Fund shall be used as security deposit to ensure
that the University complies with the provisions of the Adhiniyam
and functions as per the provision of the Adhiniyam, the Statues and
D the Act. The Regulatory Commission shall have the power to forfeit
a part of whole of the Endowment Fund, in case of non-compliance
in the manner as may be prescribed.

(d) The Endowment Fund shall be invested in the manner as may be
prescribed.
E (e) The Sponsoring Body shall be permitted to use income from the
Endowment Fund for the development of the University.

(I-A) A University already established in the State under the provisions
of the Adhiniyam, shall comply with the provisions of clauses
(b) to (e)· of Sub-section (1) of Section 4 above by 30th June,
F
2004 or else the Notification issued by the Government under
Sub-section (1) of Section 5 of the Adhiniyam shall be liable to
be cancelled on the recommendations of the Regulatory
Commission. In the event of such de-notification of the University,
completion of courses, conduct of examinations, award of the
G degrees to the students of the University may be assigned to
another University in such a manner that the interests of the
students are not affected. Expenditure made in this behalf shall
be made good from the General Fund of the University
concerned."
H
PROF. YASHPAL v. STA TE [G.P. MATHUR, .I.] 73
9. For Sub-section (I) of Section 5 of the Principal Adhiniyam, the A
following shall be substituted; namely
(l) (a) The State Government on receipt of the advice of the Regulatory
Commission under Sub-section (4) of Section 4 of the Adhiniyam,
may declare, by notification in official gazette, that the university
is established by such name and with such jurisdiction and location B
of main campus, from such date as may be mentioned in the
notification.
(b) All such notification issued under Sub-section (I) of Section 5 of
the Adhiniyam prior to coming into force of the Chhattisgarh
Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) C
Sansodhan Adhiniyam 2004, shall be included as Schedule - I of
the Adhiniyam and hereafter, notification issued regarding
establishment of a University under the provisions of this
Adhiniyam, shall form part of the said Schedule - I in
chronological order.
D
(c) All the provisions of the Adhiniyam shall apply to Universities
.
included in .Schedule - I.
10. Aft~r Sub-section (2) of Section 6 of the Principal Adhiniyam,
the following shall be substituted; nainely :-
"(2) On its notification under Sub-section (I) of Section 5, the E
University shall establish its main campus in the State of
Chhattisgarh on the land referred to in Sub-section ( 1) of Section
4 and for that purpose shall create a built up area of at least
25,000 Sq.ft. in the form of buildings and ancillary structures
within a period of 2 years from the date of such notification. In F
the case of Universities which have already been notified before
this Sansodhan Adhiniyam, the period of2 years shall be reckoned
from the date of coming in force of this Sansodhan Adhiniyam.
· (3) All disputes arising as a result of the provisions made in this
Adhiniym shall be settled by a court of law located in the State G
of Chhattisgarh."

Section 24 of the principal Act was also substituted by a new provision
which provides for setting up of a Regulatory Commission for the purpose
of ensuring appropriate standards of teaching, examinations, research,
H
74 SUPREME COURT REPORTS [2005J 2 S.C.R.

A protection of the interests of the students and ensuririg. reasonable service
conditions of employees while University has full freedom to function. The
Regulatory Commission shall function under the general control of the Visitor
and shall consist of a Chairman, two full time. and not exceeding two part-
time members to be appointed by the Visitor. Sub-section (9) of Section 24
B provides t.hat it shall be the duty of the Regulatory Commission to take in
consultat'ion 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, or such steps, as it considers
necessary for determination and maintenance of standards of teaching,
C examination and research in the University. ~

35. The amending Act of 2004 does not make any appreciable change '
in the matter of issuing a notification for establishment of a University.
Under the amending Act, Regulatory Commission is to be established by the
Visitor (Governor). The application containing the Project Report shall be
.D made to the Regulatory Commission one year before the date from which it
intends to start the University along with proof of having established an
endowment fund of Rs. 2 crores which shall be. used as security deposit to
ensure that the University complies with the provisions and functions as per
the provisions of the Act. In addition proofofbeing in possession of 15 acres
E of land in case. the main campus is proposed to be established within the
municipal corporation limits of Raipur otherwise 25 acres of land has to be
furnished. Where the land has been obtained on lease, the period of lease
should be at least 30 years. It further provides that if the sponsoring body
does not possess the required land, it shall furnish proof of having deposited
an additional sum of Rs. 2 crores in the manner prescribed. The Regulatory
F 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 if satisfied with the proposal to establish the University,
may advise the State Government to issue a notification. Section 5 provides
that the State Government on receipt of the advice of the Regulatory
G Commission may declare by notification in Official Gatette that the University
is established. Here again, without any infrastructure and without the teaching
facilities having been provided, the proposal on paper is notified as a
University. Section 4(1 )(b )(ii) mentions "possession of land" and not
"ownership". It is not difficult to speculate whether the heavy expenditure
involved in making construction of buildings (classrooms, lecture halls, offices
H and hostels, etc.), libraries and laboratories would at all be undertaken on
PROF. YASHPAL v. STATE [G.P. MATHUR. J.] 75
land which has been taken on lease for a short period of 30 years. Thus, the A
· amended Sections 5 and 6 suffer from the same vice as the unamended
provisions and are liable to be struck down as being ultra vires.

36. In exercise of power conferred by Section 26 of the UGC Act, the
University Grants Commission has m;ide the UGC (Establishment of and
B
-
Maintenance of Standards in Private Universities) Regulations, 2003. The
Regulations have been made with the object of providing for a regulat?ry
mechanism for establishment and operation of private Universities and for
safeguarding the interests of the student community with adequate emphasis
on the quality of education and to avoid commercialization of higher education

- and also to maintain standards of teaching, research and examination.
Regulation l.2 provides that the same shall apply to every private University
established by or incorporated under a State Act, before or after the
commencement of these Regulations. Regulation 1.5 provides that any private
C

University which has started functioning before the commencement of these
Regulations shall ensure adherence to these Regulations within a period of
three months from the notification thereof and failure to comply with this D
requirement shall render any degree/diploma awarded by a private University
as unspecified in terms of Section 22 (3) of the UGC Act and shall invite
penalty under Section 24 of the said Act. Regulations 3.1, 3.2, 3.6 and 3.7

- are important and they are being reproduced below :

3. l. Each private University shall be established by a separate State E
Act and shall conform to the relevant provisions of the UGC
Act, 1956, as amended from time to time.

3.2. A private university shall be a unitary university having adequate
facilities for teaching, research, examination and extension
services. F
3.6. The programmes of study leading to a degree and/or a post-
graduate degree/diploma offered by a private university shall
conform to the relevant regulations/norms of the UGC or the
concerned statutory body as amended from time to time.

3.7. A private university shall provide all the relevant information G
relating to the first degree and post-graduate degree/diploma
programme(s) including the curriculum structure, contents ,
teaching and learning process, examination and evaluation system
and the eligibility criteria for admission of students, to the UGC
on a proforma prescribed by the UGC prior to starting of these H
76 SUPREME COURT REPORTS [2005) 2 S.C.R.

A programmes.

37. Regulation 3.3 puts restriction on establishment of a University
outside the State. Regulation 5 provides consequences of violation
and lays down that if the Commission is satisfied that a private
University has, even after getting .an opportunity to do so, failed to
B comply with the provisions of any of the Regulations, the Commission
may pass orders prohibiting the private University from offering any
course for award of the degree or diploma. Similarly, the UGC is
empowered to take action against a private University awarding first
degree and/or a post-graduate degree/diploma, which is not specified
by, the UGC and any private University continuing such programme
c and awarding unspec.ified degree shall be liable for penalty .under
·Section 24 of the UGC Act.
. .
38. Shri Amarendra Sharan, learned Additional Solicitor General
appearing for UGC, has submitted that Section 5( I) of the impugned Act
D which permits establishment of a U~iversity merely by an executive action
of. issuing a notification in the .Gazette is illegal. The University Grants
Commission Act, a law made by Parliament with reference to Entry .66 List
I, having empowered the UGC to make Regulations, any provision of an
enactment made by the State Legislature concerning higher education which
is in conflict with the Regulations, would be ultra vires, as held in sub-para
E (ii) of para 41 of State of Tamil Nadu v. Adhiyaman Educational and_ Research
Institute (supra). He has referred to Regulation 3.1 of University Grants
Commission (Establishment of and Maintenance of Standards in Private
Universities) Regulation, 2003 which lays down that each private University
shall be established by a separate. State Act and shall conform to the relevant
F provisions of the UGC Act, 1956 as amended from time to time. He has also
submitted that this Court had clearly ruled in Prem Chand Jain v. R.K.
Chhabra, [ 1984] 2 SCR 883; that a University established by special legislation
alone can have the right to confer degrees, where while referring to Section
2(f) and 23 of the UGC Act it was said as under :

" ......... The word "established" or "incorporated" referred to Acts under
G
which universities are established or incorporated. Several universities
in this country have been either established or incorporated under
special statutes, such as the Delhi University Act, the Banaras Hindu
University Act, the Allahabad University Act etc. In these cases,
there is a special Act either of the Central or the' Provincial .or the
H State legislature establishing and incorporating the particular
PROF. YASHPALv. STATE[G.P.MATHUR,J.] 77
universities. There is also another pattern - where under one A
compendious Act several universities are either established or
incorporated -. for instance, the Madhya Pradesh Universities Act,
1973. The definition of university and provisions in S.23 of the Act
refer to Acts of the Central, Provincial or the State legislatures by
which one or more universities are established or incorporated and B
not to institutions incorporated under a general statute providing for
incorporation .................................................................................. .
................ 'Education including univ,ersities' was a State subject until
by the 42nd Amendment of the Constitution in 1976, that entry was
omitted from the State list and, was taken into entry 25 of the
concurrent list. But as already pointed out the Act essentially intended C
to make provisions for the coordination and detennination of standards
in universities and that, as already indicated, is squarely covered
under entry 66 of list I. While legislating for a purpose gennane to
the subject covered by that entry and establishing a University Grants
Commission, Parliament' considered it necessary, as a regulatory D
measure, to prohibit unauthorized confennent of degrees and diplomas
as also use of the word 'university' by institution which had not been
either established or incorporated by special legislation ................."

In view of Regulation 3.1, a private University can only be established
either by a separate Act or by one compendious Act where the legislature B
specifically provides for establishment of the said University. Though an
attempt has been made in Section 5(1)(b) of the amended Act in this r~gard,
but the same does not confonn to the Regulations inasmuch as the initial
notification notifying in the Official Gazette that the University is established,
is done by the executive order and not by any Act of legislature.
F
39. Shri Rakesh Dwivedi, learned senior counsel, who appeared amicus
curiae, has rightly submitted that though Entry 32 in List II is in general
tenns dea.ling with "incorporation, regulation and winding up of corporations
other than those specified in List I and Universities", but incorporation of a
company is entirely different from incorporation of a University and they are G
-l conceptually different. Sections 3, 3{l)(i), 12, 13, 26, 33 and 34 of the
Companies Act re lat~ to incorporation of a Company. It need not have a prior
business and a mere statement.of a lawful Pl!rpose in the Memorandum of
Association is .enough. If a Company is unable to. achieve its objective and
is unable to carry on business, the shareholders may suffer some financial
loss, but there is absolutely no impact on society at large. However, a H
78 SUPREME COURT REPORTS 12005] 2 S.C.R.

A University oilce incorporated gets a right to confer degrees. A University
having no infrastructure or teaching facility of any kind would still be in a
position to confer degrees and thereby create a complete chaos in the matter
of co-ordination and maintenance of standards in higher studies which would
be highly detrimental for the whole nation. A University may, therefore, be
B established either by the State in exercise of its sovereign power which would
obviously be through a legislative enactment. In the case of a private University
it is necessary that it should be a pre-established institution for higher education
with all the infrastructural facilities and qualities which may justify its claim
for being conferred with the status of a University and only such an institution
can be conferred the legal status and a juristic personality of a University.
c
40. Shri Rakesh Dwivedi has also submitted that insofar as private
Universities are concerned, the word "or" occurring in the expression
"established or incorporated" in Sections 2 (t), 22 and 23 of the UGC Act
should be read as "and". He has submitted that the normal meaning of the
word "established" is to bring into existence and in order to avoid the situation
D which has been created by the impugned enactment where over 112
Universities have come into existence within a short period of one year of
which many do not have any kind of infrastructure or teaching facility, it will
be in consonance with the constitutional scheme that only after establishment
of the basic requisites of a University (classrooms, library, laboratory, offices .....'
E and hostel facility etc.) that it should be incorporated and conferred a juristic
personality. The word "or" is nonnally disjunctive and "and" is normally
conjunctive but at times they are read vice-versa to give effect to the manifest
intentions of the legislature, as disclosed from the context. If literal reading
of the word produces an unintelligible or absurd result "and" may be read for
F "or" and "or" may be read for "and". (See Principles of Statutory Interpretation
by G.P. Singh 7th ed. Page 339, and also State of Bombay v. RMD
Chamarbaugwala, AIR (1957) SC 699 at 709 and Mazagaon Dock v. CIT
AIR (1958) SC -861 ). We are of the opinion that having regard to the
Constitutional scheme and in order to ensure that the enactment made by the
Parliament, namely University Grants Commission Act is able to achieve the
G objective for which it has been made and the UGC is able to perform itS
duties and responsibilities, and further that the State enactment does not
come in conflict with the central legislation and create any hindrance or
obstacle in the working of the later, it is necessary to read the expression
"established or incorporated" as "established and incorporated" insofar as the
H private Universities are concerned.
PROF. YASHPAL v. STATE [G.P. MATHUR. J.]

-
79

41. Dr. Dhawan has also drawn the attention of the Court to certain A
other provisions of the Act which have effect outside the State of Chhattisgarh
and thereby give the State enactment an extra territorial operation. Section
2(f) of the amended Act defines 'off-campus centre' which means a centre
of the University established by it outside the main campus (within or outside
the State) operated an9 maintained as its constituent unit having the university's

-
,.,. complement of facilities, faculty and staff. Section 2(g) defines "off-shore
campus" and it means a campus of the university established by it outside the
country, operated and maintained as its constituent unit, having the university's
B

complement of facilities, faculty and staff. Section 3(7) says that the object
of the University shall be to establish main campus in Chhattisgarh and to

- have the study centres at different places in India and other countries. In view
of Article 245 (l) of the Constitution, Parliament alone is competent to make
laws for the whole or any part of the territory of India and the legislature of
c

a State may make laws for the whole or any part of the State. The impugned
Act which specifically makes a provision enabling a University to have an
off-campus centre outside the State is clearly beyond the legislative competence
D
of the Chhattisgarh legislature.

42. The amending Act of 2004 came into force on 17.3.2004. Section
4(1-A) which was inserted by this amendment provided that a University
already established in the State under the provisions of the Adhiniyam shall
com"ply with the provisions of clauses (b) to (e) of sub-section (l) of Section E
4 by 30th June, 2004 or else the notification issued by the Government under
sub-section (l) of Section 5 of the Adhiniyam shall be liable to be cancelled
on the recommendations of the Regulatory Commission. These provi:,;ons
related to creation of an endowment fund of Rs. 2 crores and requirement of
land. lt appears that as many as 59 Universities were denotified as they did
not comply with the requirements of the aforesaid provision. Learned State F
counsel made a statement that one more University was proposed to be
denotified but the same could not be done on account of an interim order of
Court. Many of the private Universities have filed writ petitions in this Court
and also in the High Court of Chhattisgarh (which were later on transferred
to this Court) challenging the provisions of the amending Act. The main G
challenge is regarding proof of being in possession of 15 acres of land in case
~
the main campus is proposed to be established within the municipal corporation
limits of Raipur or otherwise 25 acres of land and to the establishment of an
endowment fund of Rs. 2 crores. The principal ground raised by Shri Ravindra
Srivastava and ottier learned counsel for the Universities is that the provisions
are arbitrary, the conditions imposed therein are very onerous and further
H
80 SUPREME COURT REPORTS (2005} 2 S.C.R.

A such conditions could not be imposed on already existing Universities. It is
also urged that the amending Act has a retrospective operation. In our opinion,
-
the challenge raised has hardly any substance. In order to establish a University,
there must be adequate land on which the campus may be made and necessary
infrastructural facilities provided. No University can come into existence
B without a proper campus whiCh requires land: Similarly, for those who want
to establish a University, a sum of Rs. 2 crores is a very small amount. It will
be seen that Section 4(1 )(c) provides that endowment fund shall be used as
security deposit to ensure that the University complies with and functions as
per the Act.· In Azeez Basha v. Union of India (supra), the. history of
establishment of Aligarh Muslim University has been given. Though in the
C year 1877. the Viceroy laid the foundation stone for the establishment of
Muhammadan Ango-Oriental College, Aligarh, which over a period of time
became a flourishing institution, yet, when a demand was made to establish
a University, the Government of India made a condition that at least Rs. 30
lakhs must be collected and thereafter the University was established by the
D 1920 Act. It is extremely difficult to visualize the real value and purchasing
power of Rs. 30 lakhs of the year 1920 at the pr~sentjuncture. For those who
want to establish a University, a sum of Rs. 2 crores is just a pittance. The
fact that many of the private Universities have challenged the provisions of
the amending Act itself shows their i~tention and purpose that they do not
want to create any infrastructure but. want to have the right of conferring
E degrees and earn ~oney thereby. However, it is not necessary to e~amine the
challenge raised to the amending Act in detail, as we have already held that
Sections 5 and 6 are wholly ultra vires and all notifications issued thereunder
notifying the Universities being invalid are liable to be struck down. ·

43. Shri Ravi Shankar Prashad, learned ·senior counsel for the State of
F Chhattisgarh, has submitted that the impugned Act was passed in order to
attract private capital as the State does not have enough funds to establish
educational institutions and Universities. The Policy of Government of India
has undergone a change since 1991 and emphasis is on privatization. The Act
was enacted so that facility for higher education in the State of Chhattisgarh
G may be improved and a large volume of students may get opportunity to
pursue higher studies. He has also submitted that the UGC itself has made
regulations governing admission and fee in private non-aided professional
institutions which makes reference to joint venture between a private trust or
society and the State Government. The enactment, it has been urged, is an ·
H experiment in the changing world scenario where the trend is towards
globalization. Learned counsel has further submitted that the amending Act
PROF. YASHPAL v. STATE [G.P. MATHUR. J.] 81
makes it mandatory that the main campus of the University should be situated A
in the State of Chhattisgarh and the Regulatory Commission has been
established which will ensure a foolproof monitoring of all the private
Universities. He has urged that Regulation 3.3.1 of the UGC Regulations
which requires that off-campus ce~tres or study centres. shall be set up with
the prior approval ofUGC and that of the State Government where the centre B
is proposed to be opened, is ultra vires.

44. There is hardly any merit in the submission raised. The impugned
Act which enables only a proposal of a sponsoring body to be notified as a
Univ~rsity is not likely to attract private capital and a University so notified
cannot provide educat.ion of any kind much Jess of good quality to a large C
body of students. 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 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 D
the current scenario, students are prepared to go to any comer 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 E
University by the Central Government in accordance with Section 3 of 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.
F
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 G
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 interests
of the students who may be actually studying in the institutions established H
82 SUPREME COURT REPORTS [2005) 2 S.C.R.

A 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
B 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
C 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 and Ors. v. State of Chhattisgarh and Ors.,) and Writ
D Petition (C) No. 565 of 2003 (Gopalji Agarwal v. Union of India an.d 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
E 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
F arises in implementation of this direction. All Writ Petitions, Civil Appeals
and Transferred Cases. filed by the private Universities are <lismissed.

47. Before parting with the case, we would like to pla~e on .record our
appreciation of the valuable assistance rendered by Shri Rakesh Dwivedi,
who appeared on the Court'~ request as an amicus curiae.

G.N. Petitions Appeals dismissed.