A government regulatory commission in Himachal Pradesh will have to go, the state high court ruled Saturday, quashing a legislative act and declaring ultra vires the orders that empowered the commission.
The regulatory authority was set up in 2010 to monitor private universities.
The judgment, with wide ramifications for higher education, came on the petition of the Himachal Pradesh Private Universities Management Association, which was seeking to set aside the Himachal Pradesh Private Educational Institutions (Regulatory Commission) Act, 2010, and to quash its notices issued to them.
A division bench of Chief Justice A.M. Khanwilkar and Justice Kuldip Singh observed: "Accordingly, we may have to declare the Act of 2010 ultra vires and void ab initio."
The bench in its 40-page judgment said Section 17 of the act is a sweeping provision. It postulates that the provisions of the act or rules or orders made thereunder shall have effect, notwithstanding anything inconsistent therewith contained "in any other law" for the time being in force.
"Ostensibly, this would mean that even if the provisions in the act of 2010 or rules or orders made thereunder were to be inconsistent with the law made by parliament, the state act or rules would prevail. This provision is completely opposed to the mandate of Article 254 (dealing with inconsistency between laws made by parliament and laws made by legislatures of states) of the Constitution," the court said.
Indeed, the Advocate General would submit that the expression "in any other law" may be understood as not overriding the provisions of the central legislation, but on matters which were covered by Entry 32 of the State List.
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"However, from the analysis already done, we have no hesitation in taking the view that the state legislature was incompetent to enact law on the subject which was covered by the field occupied by Entry 66 of the Union List. Accordingly, we may have to declare the act of 2010 ultra vires and void ab initio."
The petitioner challenged that the state legislature has no legislative competence to enact the act as the field of coordination and determination of standards in institutions for higher education is reserved exclusively for parliament.
The state legislature, said the petition, has no power to prescribe offences and penalties for enforcing the standards laid down by the University Grants Commission and the All India Council for Technical Education and other central authorities; more so, when the central acts themselves have not prescribed for offences and penalties.
It said the exclusive power to provide for offences and penalties for non-compliance of directions issued by the central authorities in exercise of power under central enactments exclusively vests in parliament.
Further, the act empowered the regulatory commission, comprising a chairman and two members, to impose penalty on the universities ranging from Re.1 to Rs.1 crore without any legislative guidance, it said.
"There is no tangible reason why public universities should be kept away from the requirement of similar compliances," the court said.