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By Rajiv Shukla
NEW DELHI : The
creation of the three new Jawaharlal Nehru Technological
Universities (JNTU) in Andhra Pradesh has gone awry because of a
serious legal
flaw in the establishment of the new universities, the
fallout of which may have wide-spread ramifications in
Andhra Pradesh higher education.
When contacted the Principal Secretary of Higher
Education Ashutosh Mishra confirmed that the creation of
new JNTUs has been done by an "omnibus"
Act of the state assembly (Act No. 30 of 2008) called "the Jawaharlal Nehru
Technological Universities Act, 2008" which redefines the territories
of the newly created JNTUs and ensures establishment of three independent universities
instead of one.
The Act, according to official records, received the
assent of the Governor on September 21, 2008, was
published in the Andhra Pradesh Gazette on September 24,
2008 and was enforced retrospectively with effect from
August 18, 2008.
According to clause 2 (f)
of the University Grants Commission Act, 1956 a
“University” means a University established or
incorporated by or under a Central Act, a Provincial Act
or a State Act ..." and this clause was debated
threadbare in
the landmark case Prof. Yashpal & Anr. Vs. State of Chhattisgarh & Ors.
which spelt doom for 112 private universities registered
in Raipur, Chattisgarh.
Legal experts say that the
validity of the university was, according to the case,
judged on the basis of the legal procedure followed in
the enactment, the spirit of Clause 2 (f) and
other clauses of the UGC Act and Regulations.
While the spirit of the
UGC Act demands that each university be "established or
incorporated by or under a Central Act, a Provincial Act
or a State Act..." the Chhattisgarh private universities
act sought to establish innumerable universities by one
--- and only one --- omnibus act by simple "notification
in the Gazette".
Clause 5 (1) of the
Chhattisgarh private universities act said : "5. (1) 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..."
"6. (1) Every University
established under sub-section (1) 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.
(2) the University established
under sub-section (1) of section 5 may, with the prior approval of the State
Government, affiliate any College or other institution or set up more than one
campus."
The audacity with which
the Chattisgarh private universities act (The Chhattisgarh Niji
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002) sought to
establish umpteen universities by simply notifications,
in blatant disregard to the UGC Act, was condemned by
the Supreme Court.
The apex court ruled :
"...The manner in which a University is 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."
"Sections 5 and 6 of the
impugned Act are, therefore, wholly ultra vires
of the
Constitution of India and are liable to be struck down.",
the court ruled.
A cursory glance at the
Jawaharlal Nehru Technological Universities Act, 2008,
brings out the stark resemblance between the phrases,
words and the modus operandi followed in the enactment
of the Chhattisgarh and the Andhra Pradesh legislations.
Both the state legislations essentially seek to
establish more than one universities by one "omnibus"
legislation and both of them seek to add universities by
simple insertions in the omnibus act. In Chhattisgarh
this was sought to be done by simple notifications in
the official gazette while in Andhra Pradesh this would
be done by simple insertions in the Schedule II of the
parent act.
The preamble of the Andhra Pradesh legislation (Act No.
30 of 2008), called "the Jawaharlal Nehru Technological
Universities Act, 2008" describes the legislation as "An
Act to provide for the establishment and incorporation
of Jawaharlal Nehru Technological Universities in the
state of Andhra Pradesh and for matters connected
therewith or incidental thereto."
Clause 3 (1) pf the Act
says : "3. (1) There shall be established a University
by the name of' Jawaharlal Nehru Technological
University', with the area of operation and headquarters
as specified in the Schedule-II appended to this Act."
And finally Schedule II defines
the "universities and their territorial jurisdiction" as
follows :
"1. Jawaharlal Nehru
Technological University, Kakinada.
Area comprising this Kakinada District of:
1. Srikakulam
2. Vizianagaram
3. Visakhapatnam
4. East Godavari
5. West Godavari
6. Krishna
7. Guntur
8. Prakasam
2 Jawaharlal Nehru
Technological University, Anantapur
Area comprising this Anantapur District of :
1. Anantapur
2. Chittoor
3. Kadapa
4. Kumool
5. Potti Sriramulu Nellore.
3. Jawaharlal Nehru
Technological University, Hyderabad.
Area comprising this Hyderabad District of :
1. Hyderabad
2. Ranga Reddy
3. Medak
4. Nizamabad
5. Adilabad
6. Karimnagar
7. Warangal
8. Khammam
9. Nalgonda
1O. Mahaboobnagar"
When questioned about the
similarities in the two enactments, the legal experts
said that the Chhattisgarh legislation was, indeed, for
private universities while the Andhra legislation is for
state-funded universities. But they hastened to add that
the two legislations were equally flawed and that the
courts cannot be requested to overlook an illegality
simply because it was being committed for a state cause.
Points to ponder
1.
According to Clause 2 (f)
of the University Grants Commission Act, 1956
“University” means a University established or
incorporated by or under a Central Act, a Provincial Act
or a State Act.
Notice the use of article
"a" and "an" before the word "university" and "Central
Act", "Provincial Act" and "State Act". The article "a"
and "an" stand for one/single. Doesn't the clause,
therefore, mean that only one university can be
incorporated by one legislation?
2. Can a university
act be enforced
retrospectively as has been done in the case of the
Jawaharlal Nehru Technological Universities Act, 2008?
A Constitution bench of
the Supreme Court has deliberated exhaustively on the
subject in
Azeez Basha V. Union of India case (AIR 1968 SC 662)
(commonly called the AMU minority status case) and
concluded that
retrospect enforcement of an Act cannot be allowed to
alter the fundamental facts of the case.
3. By the Jawaharlal Nehru Technological
Universities Act, 2008 has state government has
obviously appropriated the Chancellor's power to
constitute a search committee, select the
vice-chancellor and to appoint him.
Will such a arrangement
help in the selection and appointment of eminent
academicians or political power play would render the
three universities battle field of base politics?
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