Himachal Pradesh High Court today quashed the HP Regulatory Commission act after finding it against constitutional provisions and intrusion into
the union lists of subjects as legislation was brought by last BJP rule to keep check on the functioning of mushrooming up private universities and educational institutions.
Division Bench of Himachal Pradesh High Court comprising of Chief Justice A.M. Khanwilkar and Justice Kuldip Singh gave these verdicts on the writ petition of private universities challenged the bills in the court.
The Bench held that Himachal Pradesh Private Education Institution (Regulatory Commission) Act, 2010, and the rules made, as ultra-vires the Constitution of India and circulars, notices passed by respondent (commissioner) under this act are without authority of law and quash the same.
The significant judgment 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 of 2010 and to quash the notices issued to them by it.
The bench, in its 40-page judgment, said Sec. 17 of the act is a sweeping provision. It postulates that the provisions of the act or rules or orders made there under 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 there under were to be inconsistent to the law made by the Parliament, the state act or rules would prevail. This provision is completely opposed to the mandate of Article 254 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.
‘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 had challenged that the state legislature had no legislative competence to enact the act as the field of coordination and determination of standards in institutions for higher education was reserved exclusively for the Parliament.
The state legislature, said the petition, had no power to prescribe offenses and penalties for enforcing the standards laid down by the University Grants Commission and the All India Council for Teachers Education and other central authorities; more so, when the central acts themselves have not prescribed for offenses and penalties.
He said that the exclusive power to provide for offenses and penalties for non-compliance of directions issued by the central authorities in exercise of power under central enactments exclusively vests in the Parliament.
Further, the act empowered the regulatory commission, comprising a chairman and two members, to impose penalty on the universities ranging from Rs.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 compliance’s,’ it asked. “Commission has been envisaged with powers in relation to matters which are within the exclusive domain of Entry 66 of the union list. As a result, the State Legislature is not competent to enact law in that behalf “,’ Judgment said.
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