Gauhati High Court
WP(C)/3782/2022 on 19 August, 2025
GAHC010110362022
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 3782/2022
HAM AK Rural Development Foundation,
Nagaon, Assam, a Non-Government Organization registered under the
Societies Act as well as the Companies Act, represented by its
Secretary, Inamul Hasan,
S/o Abdul Mozid,
Vill & PO-Hatizuzua, PS-Jajori,
Dist.-Nagaon, Assam, Pin-782122.
......Petitioner.
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Govt. of Assam, Higher Education Department,
Dispur, Guwahati-6.
2. The Registrar,
Gauhati University,
Gopinath Bordoloi Nagar,
Guwahati-14, Assam, Kamrup(M).
3. University Grants Commission,
Bahadur Shah, Zafar Marg,
New Delhi-110002.
4. The Bar Council of India,
21, Rouse Avenue Institutional Area,
Near Bal Bhawan, New Delhi-110002.
......Respondents.
WP(C) 3782/2022 Page 1 of 22
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioner : Mr. P. Mahanta,
Ms. P. Saharia. ……Advocates.
For the Respondents : Mr. S. Bhuyan, SC, Higher Education,
Mr. P.J. Phukan, SC, GU,
Mr. A. Chamuah, SC, UGC,
Mr. R. Bhuyan,
Mr. P. Mahanta,
Ms. M. Das. ……Advocates.
Date of Hearing : 10.06.2025
Date of Judgment : 19.08.2025
JUDGMENT AND ORDER
Heard Mr. P. Mahanta, learned counsel for the petitioner. Also
heard Mr. S. Bhuyan, learned standing counsel, Higher Education
Department, appearing for the respondent No.1, Mr. P.J. Phukan, learned
standing counsel, Gauhati University, appearing for the respondent No.2,
Mr. Ritwik Bhuyan, learned counsel appearing on behalf of Mr. A.
Chamuah, learned standing counsel, UGC, for the respondent No.3 and
Ms. M. Das, learned counsel appearing on behalf of Mr. P. Mahanta,
learned counsel for the respondent No.4.
2. In this petition, under Article 226 of the Constitution of India, the
petitioner – HAM AK Rural Development Foundation, Nagaon, has prayed
for issuing direction to the respondent authorities, particularly the
respondent No.2, for giving provisional affiliation in favour of proposed
HAM AK Law College, Nagaon, Assam, under Gauhati University funded
WP(C) 3782/2022 Page 2 of 22
by the petitioner foundation, to get approval from the Bar Council of
India (BCI) for running LL.B. and BA LL.B.(H) courses in response to the
application submitted by its Director, on 31.03.2022 and subsequent
application on 02.05.2022, by exempting the requirement of submitting
the NOC from the Government by the respective institutions who have
applied for affiliation, notified by the respondent No.2 by issuing a
common Notification dated 24.05.2022, and also to direct the respondent
No.2 to start the process of issuing provisional affiliation or NOC by
initiating the process of inspection of the proposed site of HAM AK Law
College, which is already being constructed as per norms and
requirement of the BCI.
3. Mr. Mahanta, learned counsel for the petitioner submits that the
petitioner is a Non-Governmental organization, registered under the
Societies Registration Act as well as Companies Act and with a view to
start a law college to impart LL.B. and BA LL.B.(H) degrees, it had
submitted application to the respondent No.2, as per norms of the BCI on
31.03.2022 to the Gauhati University, the respondent No.2. But, the
respondent No.2, had not taken any action upon the application filed by
the petitioner and subsequently, the petitioner had filed another
application on 02.05.2022, seeking provisional NOC as well as affiliation,
from the respondent No.2 to get approval from BCI for running LL.B. and
BA LL.B.(H) courses, as it is mandatory to submit the copy of affiliation
obtained from the university concerned to the BCI at the time of making
application as per the provision of Rule 6, under the heading of ‘Periodic
Instruction’ mentioned in Chapter II of the Bar Council Inspection
Manual, 2010. Mr. Mahanta submits that the respondent No.2, by a
common Notification, dated 24.05.2022, notified all concerned that the
University will accord permission to open a new college/stream/subject(s)
WP(C) 3782/2022 Page 3 of 22
after obtaining NOC from the Government by the respective institution,
with a further request to all concerned who have applied for the same
but still pending for a decision to submit Government NOC in the Office of
the Director, College Development Council. But, Mr. Mahanta submits,
the Notification, dated 24.05.2022, was issued by the respondent No.2 on
the basis of one Office Memorandum (O.M.) issued by the Government of
Assam, and the said O.M. is not applicable in case of the College, being
proposed to be started by the petitioner, is a private funded college and
that being so, refusal to give permission to the petitioner college amounts
to contravention to the existing law occupying the field and as such, the
action of the respondent No.2 is arbitrary and illegal and therefore, it is
contended to allow this petition. In support of his submission, Mr.
Mahanta has referred to decisions of Telengana High Court in SIC
College of Pharmacy and Others vs. Jawaharlal Nehru
Technological University, Hyderabad and Others in Writ
Petition No. 19770 of 2015.
4. Per contra, Mr. P.J. Phukan, learned standing counsel for the
respondent No.2 – Gauhati University, referring to its affidavit-in –
opposition, submits that the petitioner has applied for NOC and
provisional affiliation of LL.B. and B.A. LL.B.(H) courses, to the Gauhati
University in the name of foundation and as per Ordinance on Permission
and Affiliation of Degree Colleges to the Gauhati University, 1997,
specially Section 7 (1), (2) and (3) concurrence of the State Government
is necessary. Mr. Phukan also submits that as per BCI Regulation, a State
funded institution, seeking fund from the State, has to obtain for NOC
from the Government, in view of the Office Memorandum issued by the
Govt. of Assam on 25.02.2019 ,and since the Gauhati University is a State
funded university and received fund from the Government, it is bound to
WP(C) 3782/2022 Page 4 of 22
follow the O.M. issued by the Government of Assam. Mr. Phukan further
submits that the Executive Council of the Gauhati University, in its
meeting held on 29.03.2022 has decided to issue a circular in view of the
O.M. issued by the Government and that the issue of NOC/affiliation of
the petitioner college is pending in view of non submission of NOC by the
petitioner from the Department of Higher Education (DHE), Govt. of
Assam. Mr. Phukan further submits that since the petitioner has applied
for BA LL.B.(H) course, the BA (i.e. Bachelor of Arts) course is also a part
of its academic programme and as such, the O.M. dated 25.02.2019, is
applicable in the present case also.
4.1. Mr. Phukan also submits that before granting of affiliation, the
process has to be carried out in two stages – the first stage is the
obtaining of NOC from the Government, which is a must and it is a policy
decision taken by the University and the second stage, inspection by the
BCI. Further, Mr. Phukan submits that the Executive Council has the
power to impose any condition and as such the Notification, so issued by
the Gauhati University warrants no interference of this Court.
4.2. In support of his submission, Mr. Phukan has referred to a decision
of Hon’ble Supreme Court in the case of A.P.J. Abdul Kalam
Technological University & Anr. vs. Jai Bharath College of
Management and Engineering Technology & Ors., reported in
(2021) 2 SCC 564, University Grants Commission & Anr. vs.
Neha Anil Bobde (Gadekar), reported in (2013) 10 SCC 519 and
West Bengal Central School Service Commission & Ors. vs.
Abdul Halim & Ors., reported in (2019) 18 SCC 39.
5. In reply to the above submission of Mr. Phukan, Mr. Mahanta,
learned counsel for the petitioner, submits that the O.M. issued by the
WP(C) 3782/2022 Page 5 of 22
Government is not applicable in the present case, as the petitioner
college is purely a private College and a non-sponsoring body and that
the respondent No.2 had already received the fees from the petitioner
College and as per Manual of the Bar Council, the respondent No.2 has to
process the application of the petitioner college and that the action of the
respondent No.2, insisting upon production of NOC from the State
Government, is arbitrary and illegal and therefore, Mr. Mahanta has
contended to allow this petition.
6. On the other hand, Mr. Bhuyan, learned standing counsel for the
respondent No.1 submits that since the petitioner college is applying for
permission/affiliation for starting LL.B. and BA LL.B.(H) courses, the NOC
from the Government is a must.
7. Per contra, Mr. P. Mahanta, learned counsel for the respondent
No.4, submits that as per Bar Council Regulation, if necessary, NOC will
be required at a later stage and at first the respondent No.2 has to grant
affiliation. Mr. Mahanta also submits that the petitioner has not
challenged the common Notification, dated 24.05.2022, passed by the
respondent No.2, and also the Office Memorandum issued by the Govt. of
Assam on 25.02.2019.
8. Mr. A. Chamua, learned standing counsel for the respondent UGC,
on the other hand, referring to the affidavit-in-opposition, submits that
the granting affiliation to a College/Institution comes under the purview
of the concerned affiliating University/State Government, and in this
regard the University Grant Commission has notified the University Grants
Commission [Affiliation Of Colleges By Universities] Regulations, 2009 and
also the University Grants Commission [Affiliation Of Colleges By
Universities] (1st Amendments) Regulation, 2012. The UGC guidelines
WP(C) 3782/2022 Page 6 of 22
does not provide for any such NOC. However, for maintaining the
standard, the University can impose such a condition. But, the same is
not explicitly provided in the Act.
9. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and also perused the decisions referred by learned
counsel for both the parties and also perused the UGC guidelines and the
BCI Regulation.
10. It is not in dispute that the petitioner institution has applied for
NOC/temporary affiliation to the respondent No.2, i.e. Gauhati University,
for starting LL.B. and BA LL.B.(H) courses. And admittedly, the petitioner
college is a private college and not a state funded college.
11. Further, it appears that the respondent No.2 has refused to process
the application for grant of affiliation to the petitioner college for want of
NOC from the Government in view of the O.M. issued by the Government
on 25.02.2019. It is to be noted here that based on the said O.M., the
Executive Council of the Gauhati University, in its meeting held on
29.03.2022, has issued the Notification requiring NOC from the state
Government.
12. In view of the rival contentions, made by the learned counsel for all
the parties, the issue to be decided by this Court is whether the
respondent No.2 is justified in not processing the application filed by the
petitioner college for provisional affiliation to establish proposed HAM AK
Law College, Nagaon, Assam.
WP(C) 3782/2022 Page 7 of 22
13. It is to be noted here that perusal of Section 7 of the Ordinance on
Permission and Affiliation of Degree Colleges to the Gauhati University,
1997, it involves following stages:-
(1) Permission to established a new college shall be
considered on the merit of Screening report
submitted by the Inspector of Colleges and the
concurrence of State Government. Where the
screening report does not satisfy the essential
requirements laid down under clause 6 the
application shall be rejected straight way.
(2) In case of satisfactory screening report from the
Inspector of Colleges as to the need and
feasibility of the proposed Degree College the
University shall cause an inspection under orders
of the Vice-Chancellor and Inspection report shall
be placed before the Affiliation Committee within
31st May of the year for its consideration. The
Executive Council after due consideration of the
report of the Affiliation Committee, accept the
proposal for starting a new College or reject the
application in the case of acceptance it shall
grant the proposal with its recommendation by a
resolution to the State Govt. for their concurrence
for starting the proposed new College.
(3) The Executive Council on receipt of necessary
concurrence from the State Govt. shall accord
permission to establish the proposed Degree College
and shall Issue necessary directions to the
sponsoring body to implement the following
requirements under time bound period.
(a) The proposed College shall have its own land
with a minimum area of 8 bighas in one
contiguous plot. In case, the concerning
sponsoring body constructs multistoriedWP(C) 3782/2022 Page 8 of 22
building the requirements of land may be
relaxed to four bighas.
(b) A fund of at least Rs. 1.50,000/- (one lakh
fifty thousand the name of the proposed college
to be invested in Save Banks Account or Post
Office or in a Nationalized Bank Provided that
in case of Govt. Colleges this requirement may
be waived, but all the conditions prescribed
under the site 9. Ordinances, Rules and any
other directives of the University shall have
to be fulfilled.
(4) Permission granted under this sub-clause shall be
valid for period of 12 months from the date of
issue of the order.
14. It is also to be noted here that in respect of granting temporary
affiliation to a college is governed by the University Grants Commission
[Affiliation Of Colleges By Universities] Regulations, 2009 which provides
as under:-
Procedure for granting Temporary Affiliation.
4.1. The application to start a new college and to get
it affiliated to a University can be submitted by
Central/State Government institutions and
Registered Society/Trust.
4.2. If the applicant is a Society/Trust, it shall have
been registered under Registration of Societies
Act, the Trusts Act or any other Act of the
Central! State Government on or before the date
of submission of the application.
4.3. The Government/Society/Trust which proposes to
start the college and wishes to get it affiliated
to the University in whose jurisdiction the
location of college falls shall make anWP(C) 3782/2022 Page 9 of 22
application within the stipulated time to the
University in the prescribed proforma along with
the prescribed fee in the form of Demand Draft
drawn in favour of the Registrar of the
University.
4.4. The application shall be submitted with certified
copies of the following documents:
4.4.1. Registration of the Society/Trust along with
details of Constitution and Memorandum of
Association;
4.4.2. Letter from the Competent Authority
designated by the Government concerned for
classification of land and its location as
Metropolitan or other areas;
4.4.3. Land Use Certificate from the Competent
Authority designated by the Government
concerned;
4.4.4. Registered land /Govt. leased land, documents
in the name of the applicant;
4.4.5. Appropriate order from the Govt. permitting
the Society/Trust to start the college with
details of the courses/programmes intended
to be offered;
4.4.6. Building Plan of the proposed college
prepared by a registered Architect arid
approved by the Competent Authority
designated by the Govt. concerned;
4.4.7. Registered documents by the registered
Society/Trust earmarking land and buildings
for the proposed college;
4.4.8. Details of the latest fund position along
with photocopies of relevant bank accounts,
including the evidence of the Corpus Fund
WP(C) 3782/2022 Page 10 of 22
earmarked for the purpose as specified under
Clause 3.2.2.
4.4.9. Detailed Project Report giving-
a) background of the Society/Trust with
reference to its experience in promoting,
managing and operating educational
institutions; details of its promoters
including their background; its activities
in the social, charitable and educational
spheres since its inception and its Vision
and Mission;
b) development plan for the college with
timeline, spelling out its growth plan over
the first 10 year period in terms of
phasing of academic programmes, increase in
students intake and introduction of
postgraduate programmes/research, and the
time schedule for stage-wise development of
the academic infrastructure, like
recruitment of faculty, and other support
facilities, including student amenities,
such as hostels, sports and recreational
facilities.
c) architectural master plan indicating the
land use pattern including those for the
future;
d) policy with regard to faculty recruitment,
retention and development;
e) structure of academic and administrative
governance;
f) sources of financing of capital and
operating expenditure, besides funds to be
generated through students fees; andg)
WP(C) 3782/2022 Page 11 of 22
resource projections and their utilization
schedule.
4.5. The University shall make a preliminary scrutiny
of the application, and if found satisfactory,
issue a letter of intent, within two weeks from
the date of receipt of the application by the
university, to cause an inspection within a
period of three months or physical verification
of all requirements for the grant of temporary
affiliation.4.6The college shall be subjected to
an inspection by the University through a
committee of experts nominated by the Vice
chancellor consisting of:4.6.1One Expert for each
of the subject areas proposed,4.6.2Dean, College
Development Council,/an equivalent academician of
the university,
4.6. A representative of the higher education
department of the Government not below the rank
of Deputy Director, and4.6.4an Engineer from the
PWD/CPWD or the University not below the rank of
Executive Engineer. One of the subject experts at
the level of Professor, as nominated by tile
Vice-Chancellor, shall be the Chairperson of the
Committee.
4.7. The report of the inspection Committee shall be
submitted by the Chairperson to the University
duly filled in and signed by all the members. The
University shall process the report through its
appropriate Bodies and decide to grant, or not to
grant, temporary affiliation to the college,
recording the reasons in writing for its decision
within three months of inspection.
4.8. On the basis of the infrastructure and other
facilities available at the college, the
University shall decide the number of seats for
each programme in the college.4.9The Syndicate!
WP(C) 3782/2022 Page 12 of 22
Executive Council of the University shall be the
ultimate to decide granting, or not granting,
affiliation.4.10Continuation of temporary
affiliation o(the programmes of study and the
college itself shall be granted by the University
on a year to year basis through inspection
process prescribed in these Regulations.4.11If
the University decides not to grant affiliation
to the college for reasons, recorded in writing,
of its failure to meet the
conditions/requirements for getting affiliation,
the college may apply again if it fulfills the
conditions/requirements subsequently, but not
earlier than six months from the date of
rejection of its earlier application.
14.1. The University Grants Commission [Affiliation of Colleges by
Universities] Regulations, 2009 was however, amended in the year 2012
inserting some more clauses.
15. It is also to be noted here that CHAPTER III of the Rules of Legal
Education, 2008 provides for Inspection, Recognition and Accreditation.
Rules 16 lays conditions for a University to affiliate a centre of legal
education as under:-
Conditions for a University to affiliate a Centre of Legal
Education(1) When a University receives an application for
affiliation of a Centre of Legal Education to provide
legal education by running professional degree
program in law under either or both the streams, the
University may before ar Council of India deciding
whether it is fit case for seeking inspection from
the Bar Council of India, shall ensure that-
WP(C) 3782/2022 Page 13 of 22
(i) the applicant organization proposing to run the
institution is either already a non-profit
organization of trust or registered society or
a non-profit company or any other such legal
entity or has taken all legal formalities to be
as such,
(ii) the institution has in its name either in
freehold or leasehold, adequate land and
buildings, to provide for Centre of Legal
Education building, library, halls of
residences separately for male and female and
sports complex both indoor and outdoor, so that
it can effectively run professional law courses
provided that in case of leasehold the lease is
not less than ten years, Provided that
sufficient and adequate floor space area
specially and completely devoted for a Centre
of Legal Education, based on the size of its
student population, faculty requirement,
adequate space required for infrastructure
facilities can be considered sufficient
accommodation for the purpose in a multi-
faculty building on land possessed by the
Management of a Society/ Trust running multi-
faculty institutions.
(iii) recruited or taken steps to recruit adequate
number of full time and visiting faculty
members to teach each subjects of studies, each
faculty having at least a Master Degree in the
respective subject as required under the UGC
Rules,
(iv) there is the separate Centres of Legal Education
for the study of law under a separate Principal
who should be qualified in Law to be a
Professor of Law as stipulated under UGC and
Bar Council of India rules,
WP(C) 3782/2022 Page 14 of 22
(v) there is adequate space for reading in the
library and there are required number of books
and journals and adequate number of computers
and computer terminals under a qualified
librarian,
(vi) if the prior permission of the State Government
is necessary, a no objection certificate is
obtained to apply for affiliation,
(vii) a minimum Capital Fund as may be required under
Schedule III from time to time by the Bar
Council of India, and put into a Bank Account
in the name of the proposed Centre of Legal
Education sponsored by any private sponsor or
sponsors, and
(viii) all other conditions of affiliation under the
University rules as well as the Bar Council of
India Rules are complied with.
(2) After affiliation order is received from the
University the Centres of Legal Education may only
then apply for inspection by the Bar Council of
India.
16. The Office Memorandum No. AHE.843/2017/52, dated 25.02.2019,
issued by the Government of Assam, Higher Education Department,
Dispur provides that the Government of Assam had issued one Office
Memorandum, dated 25.02.2019, requiring no objection for opening of a
Degree College/introduction of New subjects/Major Courses of Study in
Degree Colleges and granting of permission to affiliation accorded by the
University and the said notification came into force with immediate effect.
16.1. Clause 2 of the aforesaid OM provides that prior no objection for
opening of a new college/new subjects/major courses of studies shall be
WP(C) 3782/2022 Page 15 of 22
required. Clause 8 of the said O.M. provides that when the University
concerned seeks prior no objection from the Government for opening a
new faculty/new subjects of studies in an affiliated college, the
Government will take necessary action for inspection of the college
concerned through the Directorate of Higher Education. Clause 9 provides
that physical verification of the college concerned will be made by an
officer of the Director of Higher Education not below the rank of Deputy
Director and the physical verification will be conducted within the
following parameters:-
(i) Need of the proposed faculty/subjects/major course of study;
(ii) Distance of the college from the other neighboring colleges
where particular faculties/subjects/major courses are being
taught together with the class wise enrollment in the
faculty/subjects/major courses under reference;
(iii) Arrangement in respect of additional accommodation
required for instruction of new faculty/subjects/major
courses;
(iv) Provision for laboratories, museum, gas plan room, balance
room, dark room, departmental tea room, supply of water
and electricity as necessary;
(v) Provision for expansion of the Library; and
(vi) Financial Resources of the College to meet the actual
expenditure as required for opening of new faculty/subjects/
major courses of study.
WP(C) 3782/2022 Page 16 of 22
17. And it appears from the stand taken by the respondent No.2 in its
affidavit-in-opposition that the resolution of the Executive Council, dated
29.03.2022, is based upon the Office Memorandum No. AHE.843/2017/52
dated 25.02.2019, issued by the Government of Assam, Higher Education
Department, and thereafter, the impugned Notification No. GU/AFF/2022
dated 24/05/2022, was issued.
17.1. The Notification No. GU/AFF/2022, dated 24/05/2022, issued by
the Gauhati University, read as under:-
NOTIFICATION
It is notified for information of all
concerned that from now onwards Gauhati University
will accord permission to open new college/stream/
subject(s) after obtaining No Objection
Certificate from the Govt. by respective
institutions.
Therefore, all concerned who have already
applied for the same but are pending for a
decision are hereby requested to submit Govt. No.
objection Certificate in the office of the
Director, College Development Council. Also the
College/concerned Bodies who are interested to
open new college/ stream/subject(s) are to submit
Govt. No Objection Certificate along with
necessary application without which the matter
cannot be processed.
This is issued as per E.C. Resolution No.
R/EC-02/2022/15(b) dated 29.03.2022.
Sd/-
Registrar
Gauhati UniversityWP(C) 3782/2022 Page 17 of 22
18. Notably, neither the aforesaid Notification No. GU/AFF/2022, dated
24/05/2022, issued by the respondent No.2, i.e. Gauhati University, nor
Office Memorandum No. AHE.843/2017/52, dated 25.02.2019, issued by
the Government of Assam, Higher Education Department, Dispur is
challenged in this petition.
19. However, it appears that granting of temporary affiliation by a
University for establishment of a new college is governed by the
University Grants Commission [Affiliation of Colleges by Universities]
Regulations, 2009 and admittedly, nothing has been provided in the said
Regulation in respect of NOC from the State Government. But, according
to learned standing counsel for the respondent No.3, i.e. UGC, such
condition can be imposed in order to maintain standard.
20. However, as per Rules 16(1) of the Rules of Legal Education, 2008
provides that when a University receives an application for affiliation of a
Centre of Legal Education to provide legal education by running
professional degree program in law under either or both the streams, the
University may before Bar Council of India deciding whether it is fit case
for seeking inspection from the Bar Council of India, shall ensure
fulfillment of certain conditions, including the condition if the prior
permission of the State Government is necessary, a no objection
certificate is obtained to apply for affiliation, under clause (vi).
21. But, before that the University has to follow the procedure for
granting temporary affiliation, as prescribed under the University Grants
Commission [Affiliation of Colleges by Universities] Regulations, 2009 in
clause 4.1. to 4.5. Such an exercise has, admittedly not been carried out
despite receipt of application and fees from the petitioner college. Thus,
WP(C) 3782/2022 Page 18 of 22
the conduct of the respondent No.2, to the considered opinion of this
Court is arbitrary and illegal.
22. However, the respondent No.2 has refused to process the
application for grant of affiliation to the petitioner college for want of NOC
from the Government, in view of the O.M. issued by the Government on
25.02.2019, and in view of the Resolution of the Executive Council of the
Gauhati University, in its meeting held on 29.03.2022, and subsequent
Notification issued by it requiring NOC from the State Government and
also in view of Section 7 of the Ordinance on Permission and Affiliation of
Degree Colleges to the Gauhati University, 1997, which provides that
permission to establish a new college shall be considered on the merit of
screening report submitted by the Inspector of Colleges and the
concurrence of State Government.
23. Thus, the O.M. issued by the Government on 25.02.2019, and the
Resolution of the Executive Council of the Gauhati University, in its
meeting held on 29.03.2022, and subsequent Notification issued by it
requiring NOC from the State Government and also in view of Section 7
of the Ordinance on Permission and Affiliation of Degree Colleges to the
Gauhati University, 1997, which provides that-permission to establish a
new college shall be considered on the merit of screening report
submitted by the Inspector of Colleges and as such, the Notification of
respondent No.2 requiring NOC from the State Government appears to be
in conflict with the UGC Regulations and also the Rules of Legal
Education, 2008.
24. Notably, the UGC Regulations was framed under the UGC Act and
the Rules of Legal Education, 2008 was framed under the Bar Council Act.
And both are central legislation, and as such the same are binding upon
WP(C) 3782/2022 Page 19 of 22
the States. The State cannot enact any law or issue any Office
Memorandum or Notification, contrary to the provision of the aforesaid
Act and Regulations framed there under. And if it is in conflict with the
law enacted by the State, including the Gauhati University Act and its
Ordinance then the central legislation and Rules and Regulations will
prevail, in view of Article 254 of the Constitution of India. In holding so,
this Court derived authority from following decision of Hon’ble Supreme
Court in the case of (i) State of T.N. vs. Adhiyaman Educational
& Research Institute, reported in (1995) 4 SCC 104, wherein it
has been categorically held that neither the State Government nor the
University have got power to enact law on the subject which falls under
Entry 66 of List I and that the existing law to the extent of inconsistency
with the provisions made in the AICTE Act is ultra vires and
unenforceable; (ii) Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational & Charitable Trust v.
State of TN, reported in (1996) 3 SCC 15, wherein Hon’ble
Supreme Court has held that prior permission of State Government to
start a new Medical College is invalid on the ground of repugnancy. It is
further held that Section 5(5) of the Medical University Act enacted by the
State Act is held as repugnant to Section 10-A of Indian Medical Council
Act; (iii) Jaya Gokul Educational Trust vs. State of Tamil
Nadu, reported in 2000 (5) SCC 231, wherein, by re-capitulating the
dictum laid down in Adhiyaman‘s (Supra) case, Hon’ble Supreme
Court specifically ruled that the University cannot impose conditions for
affiliation in contravention of the provisions contained in the Central Act,
viz. AICTE Act. Thus, the position of law and the validity of existing law of
the State enactments have been made crystal clear in the above stated
judgments of the Hon’ble Supreme Court.
WP(C) 3782/2022 Page 20 of 22
25. Though a stand has been taken by the respondent No. 2 in its
affidavit that the Notification, dated 24.05.2022 is in conformity with the
Gauhati University Act, yet in view of the discussion and finding in respect
of the procedure prescribed under the UGC Regulations, 2009, the said
stand of respondent No. 2 cannot be accepted.
26. In the instant case, the application for grant of temporary affiliation
was filed by the petitioner college on 31.03.2022. Subsequently, another
application was filed on 31.03.2022. The respondent No.2 had also
received the fees amount from the petitioner college. And it also appears
that the Notification requiring NOC was issued on 24.05.2022. On receipt
of the application, the respondent No. 2 ought to have processed the
same following the procedure prescribed under Regulation 4.5, of the
University Grants Commission [Affiliation of Colleges by Universities]
Regulations, 2009. And only thereafter, to proceed in accordance with the
Rule 16(1) of the Rules of Legal Education, 2008.
27. In that view of the matter, the act of respondent No. 2, insisting
upon NOC from the State Government, at that stage, appears to be
bereft of logic and not in conformity with the UGC Regulations and
therefore, the same is arbitrary and illegal and liable to be interfered
with.
28. The issue, as formulated herein above stands answered
accordingly.
29. I have carefully considered the submission of Mr. Phukan, the
learned standing counsel for the respondent No. 2, and in view of the
discussion and findings recorded herein above; his submission left this
Court unimpressed. It is, however, a fact that courts are not supposed to
interfere policy decision of the state but, it is not an absolute proposition
WP(C) 3782/2022 Page 21 of 22
of law as because when the decisions are contrary to existing legal
framework, and arbitrary and illegal, the courts are bound to exercise its
jurisdiction. I have also carefully gone through the decisions referred by
Mr. Phukan and also by Mr. Mahanta, the learned counsel for the
petitioner. But, in order to decide the issue raised in the present petition,
reference to all those decisions, to the considered opinion of this Court is
not at all necessary.
30. Under the given facts and circumstances, I find sufficient merit in
the petition and accordingly, the same stands allowed. By a mandamus of
this Court, the respondent No. 2 is directed to process the application
dated on 31.03.2022, and subsequent application dated 02.05.2022, filed
by the petitioner college in accordance with the procedure prescribed
under Regulation 4.5, of the University Grants Commission [Affiliation Of
Colleges By Universities] Regulations, 2009 and thereafter, as per Rule
16(1) of Rules of Legal Education, 2008.
31. In terms of above, this writ petition stands disposed of.
JUDGE
Comparing Assistant
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