‘It is the legislature which prescribes the qualifications, mode of selection, and conditions of service of vice chancellors’
| Photo Credit: Getty Images/iStockphoto
The draft regulation by the University Grants Commission (UGC) on the selection and appointment of vice chancellors of universities has evoked protests by non-Bharatiya Janata Party-headed State governments. Their main objection against this regulation is that it constitutes a violation of the federal principles enshrined in the Constitution of India. The State governments concerned have demanded its withdrawal.
The UGC has sought to amend Regulation 2010 that relates to the selection and appointment of vice chancellors by widening the area of selection. Under the existing regulations, a vice chancellor can be selected only from among academicians who have a minimum experience of 10 years as professor. Through this amendment, the UGC declares that professionals with 10-plus years of experience in industry, public administration or public policy, shall also be considered.
The draft regulation raises serious constitutional issues which need to be examined by separating the political context of protest and a possible political reaction from the UGC or the party in power.
The objective of the UGC Act
The University Grants Commission Act, 1956 was enacted by Parliament to make provision for “the co-ordination and determination of standards in Universities and for that purpose, to establish the University Grants Commission”. The Act, therefore, mandates the UGC to take all steps as it thinks fit for the promotion and the coordination of university education, and for the determination and maintenance of standards of teaching, examination and research in universities. For performing these functions the UGC can allocate funds to the universities essentially for the maintenance and development of the universities, recommend measures necessary for the improvement of university education, advise the Union or State governments on the allocation of grants to universities for any general or specific purpose, collect information on all matters relating to university education in India and other countries and make them available to any university, regulation of fees…..
Section 26 of the UGC Act empowers the UGC to make regulations for implementing the mandate of the Act. But it is made clear in this section that these regulations need to be consistent with the Act and the rules made there under. The most important among these regulations relate to defining the qualifications required of a person to be appointed to the teaching staff in a university, the minimum standards of instructions for the grant of any degree by a university, and regulating the maintenance of standards and the coordination of work or facilities in universities.
It is not the job of the UGC
The crucial point that needs to be considered here is whether the regulation made by the UGC in respect of the selection, qualification and appointment of vice chancellor is consistent with the provisions of the UGC Act. As a matter of fact, the Act does not contain any provisions relating to the selection and the appointment of vice chancellors. The fundamental objective of the Act is to determine standards in universities and the promotion and the coordination of university education. To lay down the standards of teaching and to prescribe the qualifications of teaching staff whose job is to give instructions, is the main function of the UGC — which it does by making periodic regulations. But the problem arises when this statutory body begins to regulate an area which is not a part of the parent Act. Rules, and regulations are technically called subordinate legislation. The subordinate legislation can be made only in consonance with the provisions in the Act. If the regulation goes outside the scope of the Act, it will be ultra vires the Act, and hence invalid.
Editorial | Centralising control: On the Draft UGC Regulations, 2025
A close reading of the Act would show that it was not meant to prescribe the qualifications or mode of selection of vice chancellors. All universities, whether under the Union or the States, are established under a statute made by the respective legislature. Therefore, it is the legislature which prescribes the qualifications, mode of selection, and conditions of service of vice chancellors. It is not the job of the UGC. The selection and the appointment of vice chancellors cannot be considered to be an exercise connected with maintaining the standards of education or promotion and coordination of university education. The Bombay High Court in Suresh Patilkhede vs The Chancellor Universities of Maharashtra and Others (2011) corroborates this view in the following words “we are of the view that qualifications and method of appointment of Pro-Chancellor and Vice Chancellor of the University cannot be treated as satisfying the ‘direct impact’ test [on the standards of education]”. Therefore, it is safe to assume that under Section 26 of the UGC Act, the UGC has no mandate to make any regulation in respect of the selection and the appointment of vice chancellors.
An interesting constitutional question which arises in the context of the UGC’s regulations is whether a regulation can over-ride an Act passed by a State legislature. This question came up in the context of the termination of the appointment of some vice chancellors in the past. The Bombay High Court in the Suresh Patilkhede case (supra) took the view that “Regulation 7.3.0 of UGC Regulations, 2010 being a subordinate legislation under an Act of Parliament cannot override plenary legislation enacted by the State Legislature….” However, the Supreme Court of India, in Kalyani Mathivanan vs K.V. Jeyaraj and Ors (AIR 2015 SC1875 para 22) overruled it by holding “we hold that the U.G.C. Regulations through a subordinate legislation has binding effect on the Universities to which it applies….” The reason given by the Court for reaching this conclusion is that “it is only when both the Houses of the Parliament approve the regulation, the same can be given effect”. It may be clarified here that Parliament does not formally approve any rule or regulation laid in the House. It can only amend a rule which has already come into effect before it is so laid; if Parliament amends the rule, it will, thereafter, be effective in the amended form. With due respect to their lordships, the observation of the Court does not correctly reflect the parliamentary procedure relating to the laying down of rules and regulations in the Houses of Parliament.
The question whether the UGC regulations override a State law can be answered only in terms of Article 254 of the Constitution which deals with repugnancy. Under this Article, if a State law is repugnant to the central law, the State law, to the extent of repugnancy, be void. But is a regulation made by the UGC, a central law within the meaning of Article 254? Clause (2) of this Article says that if the law made by the legislature of a state has been reserved for the consideration of the President and has received his ascent, it shall prevail in the State. In this clause the word ‘law’ simply means the Bill passed by the legislature and sent to the President. It does not include the rules and regulations which are framed only after ascent is received. So, what overrides a State law is a Bill passed by both Houses of Parliament and assented to by the President, and certainly not the subordinate legislation.
A key ruling
In any case, the Court made a significant ruling on the question of mandatory application of Regulation 7.3.0 of the UGC relating to the selection and appointment of vice chancellors in the Kalyani Mathivanan case (supra) it says: “However, the finding of the Bombay High Court that Regulation 7.3.0 has to be treated as recommendatory in nature is upheld in so far as it relates to Universities and Colleges under the State Legislation.” This ruling may perhaps help resolve the present controversy.
P.D.T. Achary is former Secretary General, Lok Sabha
Published – January 21, 2025 12:16 am IST
