Summary: This post seeks to highlight the dichotomous relationship between UGC Regulations and National Law Universities. While the Courts have read the UGC Regulations to be mandatory through a constitutional interpretation, the national law universities have seemed to carve out an exception for themselves and have observed the UGC Regulations to be merely recommendatory.
The University Grants Commission (‘UGC’) while has controlled the governance of universities established through statutes to a great extent, has struggled with establishing dominance over national law universities (‘NLUs’) that too are a product of statutory design. Last year, the Supreme Court was confronted with several cases that dealt with the appointment of Vice-Chancellors of state-enacted law universities being in violation of the University Grants Commission Act, 1956 (‘UGC Act’) and the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (‘UGC Regulations’). The underlying assumption that drove these cases to the Apex Court was that these above-mentioned UGC legislations were considered merely recommendatory and not mandatory.
I attempt to showcase whether the Court’s rationale could be applied to NLUs or if there exists an irreconcilable conflict. Thus, through this blog post, I seek to contexualise the West Bengal National University of Juridical Sciences Act, 1999 (‘NUJS Act’) while aiming to justify the differences in the procedure of appointment due to the inherent diverse characteristics and presence of safeguards.
A CONTEXTUAL BACKGROUND
It is imperative to confirm the applicability of the UGC Regulations on NUJS. NUJS is notified under Clause (f) of Section 2 of the UGC Act and has been included in the list of the universities maintained by the UGC. Accordingly, since the UGC Regulations are State, Private and Deemed to be Universities, they are applicable to NUJS as being a state university recognized by the UGC.
In the manner of appointment of the Vice-Chancellor, Section 5 of the NUJS Act states that the Vice-Chancellor shall be determined by the Executive Council based on the recommendations of a high-level expert committee of three persons constituted by the Executive Council. Further, regulations on the procedure of appointment of Vice-Chancellors were made and subsequently approved in the 8th Executive Council meeting that states that the Search Committee for the appointment of the Vice-Chancellor shall constitute a nominee of the Chancellor, a nominee of Executive Council of the University, a nominee of the General Council, and a nominee of the Government of West Bengal. These regulations were reported and ratified by the General Council of NUJS, the highest governing body of the university. It is imperative to highlight the absence of the UGC nominee in the regulations made for the appointment.
Additionally, a perusal of the minutes of the meeting of the 61st Executive Council highlights a referral made to the 2013 version wherein the presence of a UGC nominee is not required. The recent UGC Regulations that warrant a nominee was excluded from consideration.
LESSONS FROM THE PAST
In the case of Gambhirdan Gadhvi v. Gujarat, a two-judge bench of the Supreme Court heard a petition that challenged the appointment of the Vice-Chancellor of the Sardar Patel University, a university enacted through legislation passed by the State of Gujarat. In this case, it was contended that the appointment of the petitioner i.e., the Vice-Chancellor was illegal since his appointment process was unlawful. The erstwhile UGC Regulations 2010 provided for the constitution of a Search Committee consisting of a nominee of the Chancellor, a nominee of the Chairman of UGC, and a nominee of the Executive Council of the University. This provision has now been encapsulated as Regulation 7.3. In this case, the UGC nominee was not appointed and the process under Section 10(2)(b) of the Sardar Patel University Act 1955 (‘SPU Act’) was followed. It was observed that the UGC Regulations were a subordinate and delegated legislation to the UGC Act and by virtue of that, became an inviolable and a core part of the central act itself. Thus, the Court now viewed the case as a conflict between a state legislation and a central act since the subject of ‘education’ is in the Concurrent List. Here, the Court held that applying the principle of repugnancy enshrined under Article 254 of the Constitution, the central act i.e., the UGC Regulations will take precedence over the central act i.e., the SPU Act.
This position was affirmed using support from Kalyanji Mathivanan v. K.V. Jeyaraj, which had observed that to the extent the State legislation is in conflict with the Central legislation including subordinate legislation, the same shall be repugnant and inoperative.
Similarly, in the case of Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., the appointment of the Vice-Chancellor of the APJ Abdul Kalam Technological University was challenged on exactly the same grounds and had an exact similar factual matrix. Such a position was further iterated in the case State of West Bengal v. Anindya Sundar Das wherein the appointment of the Vice-Chancellor of the Calcutta University was challenged and the case of Narendra Singh Bhadari v. Ravindra Judgran, where the appointment of the Vice-Chancellor of the Soban Singh Jeena University was impugned. Thus, it is quite settled and clear that the UGC Regulations are not directory but rather mandatory and applicable to statutory universities. Further, they prevail and supersede the state enactments that govern the university and hence, their requirements cannot be dispensed away with.
This position has been critiqued on the grounds that a state act should not be made subservient to a delegate legislation since the former is a product of a legislature comprising of the elected representatives whereas the latter is promulgated by the union executive without any democratic participation. Despite this diatribe, I aim to justify the divergence from UGC norms as espoused by NUJS.
A JUSTIFIED REBELLION?
While following the Court’s trajectory, it could be contended that the appointment of the Vice-Chancellor of NUJS is unsustainable in law due to the absence of the mandatory UGC nominee. However, alternatively, it can be argued that: first, the UGC Chairperson is a member of the General Council, the supreme governing body of the university, thus it can be said that the appointment of the Vice-Chancellor has received his stamp of approval basis his membership in the governing body.
Second, it is unreasonable to classify NLUs as mere statutory universities. As was noted in the case of Balachandar Krishnan v. National Law School of India University, wherein the reservation process at the NLSIU was challenged. Here, the Karnataka High Court upheld the difference in the status of NLUs and held them to be autonomous institutions as compared to mere state universities. The judgment clearly delineates the differences between NLUs and other state law universities on the grounds of financial aid and the freedom of pedagogy.
Thus, it can be contended based on these grounds that NUJS was not mandated to follow the UGC Regulations vis-à-vis the mode of appointment, since it was not just another state university and had safeguards present. It is imperative to note that the Supreme Court is hearing an appeal challenging this High Court judgment. However, neither any orders have been passed nor the judgment has been stayed.
Thus, through the example of NUJS, the dichotomy is extremely apparent. On one hand, while the Court has held the UGC Regulations to be mandatory for state universities; NUJS through its self-developed practice of convention has observed the regulations to be merely recommendatory. Thus, while the state acts can be held to be contrary to the UGC Regulations, the presence of several safeguards, prevents the quashing of the appointment. Additionally, the fine differences between mere universities established through a statute as compared to NLUs ought to be appreciated. Thus, I conclude that the authoritative status of the UGC Regulations seem doubtful despite judicial affirmation when compared to NLUs that have somehow justifiably carved out a niche of eminence for themselves.
Anshul is pursuing his postgraduate degree from the University of Oxford, and completed his undergraduate degree from NUJS, Kolkata. He is passionate about public law, especially its intersection with the Constitution.
[Ed Note: This Article has been edited by Eeshan Sonak and published by Harshitha Adari from the Student Editorial Team.]