What are private universities?

University Grant Commission Act, 1956 and various rules and regulations under it govern the Universities in Indi. As per Regulation 2.1. of the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003, private university means a university duly established through a State/Central Act by a sponsoring body viz. a society registered under the Societies Registration Act, 1860 or any other corresponding law for the time being in force in a State or a Public Trust or a Company registered under Section 25 of the Companies Act, 1956.

Control of University Grant Commission (UGC) over private universities?

1. Each Private university shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956 as amended from time to time.  
2. A private university shall be a unitary university having adequate facilities for teaching, research, examination and extension services.
3. A private university established under a State Act shall operate ordinarily within the boundary of the State concerned. However, after the development of main campus, in exceptional circumstances, the university may be permitted to open off campus centers, off shore campuses and study centers after five years of it coming into existence.
4. UGC may cause periodic inspection of the private university and its off-campus centre(s), study centre(s), off-shore campus(es), etc. offering its programmes.
5. UGC may take necessary action against a private university awarding a first degree and/or a post-graduate degree/diploma, which are not specified by the UGC, and inform the public in general through a public notification.

What is the procedure for appointment aof Teachers in Private Universities?

The National Testing Agency (NTA) has been entrusted by the University Grants Commission (UGC) with the task of conducting UGC-NET, which is a test to determine the eligibility of Indian nationals for ‘Assistant Professor’ and ‘Junior Research Fellowship and Assistant Professor’ in Indian universities and colleges.[1] But generally appointment in practice in private universities is done on a contractual basis without any requirement for NET.

Private universities have often exercised arbitrary power by removing professors by serving them short term notice and paying them salary in lieu of the notice period. They then take recourse of not being public entities to prevent any action being taken against them. But this arbitrary exercise of power not only hampers the teacher being removed but also the whole academic batch and research projects ongoing in the university. Many a times, professors are extended scholarship money to undertake research projects, but such arbitrary dismissal of professors leads to wastage of scholarship money which is often tax-payers money.

This practice is hostile in nature as it is done without providing any opportunity to the professor party of being heard. This is against the principles of natural justice, law of the land and applicable laws. When teachers are removed on immediate basis by extending salary in lieu of notice period, they are depriving of their right to information and transparency in the transaction undertaken by the institute.

Since the higher education institutes are responsible for the overall development of the basic infrastructure of Higher education sector, both in terms of policy and planning. Such institutes, even private are responsible for the expansion of access and qualitative improvement in the higher education, through policy making and establishment of world class universities, colleges, and other institutions.

A university in India means a university established or incorporated by or under a Central Act, or Provincial Act or a State Act, it is recognised by the UGC in accordance with the regulations of UGC Act, 1956. These universities are governed by the rules and regulations framed from time to time by the UGC including ‘UGC Regulations on Minimum Qualification for appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010’.

It is pertinent that these institutes abide by to fulfill their objective of imparting education for the development of students at large, affecting the society at large and is performing a public duty.

Whether private educational institutions perform public duty?

• Imparting education is a state function. A welfare state has to ensure that children are educated. This is provided in Art. 41 of the COI as the state shall within the limits of its economic capacity and development make effective provision for securing the right to work, to education. The state is allowed to delegate its function to private sector educational institutions. It is not surprising that the State doesn’t have the funds and resources to setup educational institutions and in particular for higher education.

• Further, imparting education is not a state monopoly. The right to establish and administer educational institution is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to the minorities specifically under Article 30. Private educational institutions are a necessity in the present-day context. Government is in no position to meet the demand of education at all levels–from primary education to higher education.

Can the teacher file Writ Petition to exercise their right?

• In the case of Janet Jeyapaul v. SRM University and Ors. (AIR 2016 SC 73), the question arose whether writ jurisdiction under Article 226 of the Indian Constitution be invoked against a deemed university. It was noted that ‘imparting education to students at large’ is a ‘public function’ and therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be amendable to writ jurisdiction of the High Court under Article 226 of the Constitution.

Further it was noted that mandamus cannot be availed if the management of the college was not a statutory body. A dismissed employee cannot enforce a contract of personal service against a non-statutory body. So, if the management of the college is purely a private body with no public duty then no mandamus will lie. There are two exceptions. i.e., when private nature of management is absent and the party has no other equally convenient remedy, mandamus cannot be denied.

• In the case of Uttam Kumar Samanta v. KIIT University (118 (2014) CLT 997), the petitioner was terminated from service while on probation. He challenged this action in writ petition. The respondent questioned the maintainability of the writ petition as it is a self-financed private institution, registered under the Societies Registration Act, 1962. But, it was noted that it is a deemed university under S.3 of the UGC Act, 1956 and is notified by the Union of India in it’s official gazette. Further, it gets grants from the Centre and central agencies. Furthermore, it extends the same duties as that of government institutions and hence comes within the meaning of state under Art. 12 of the COI, 1956. So, the grievance of the petitioner can be amendable to the writ jurisdiction under Art. 226 of the COI. Hence, the writ petition was held to be maintainable in this case.

• In Roychan Abraham v. State of UP and Ors., the petitioner, an assistant teacher was placed under suspension and thereafter terminated. This was challenged as arbitrary and in violation of the service conditions of the institution. Further, court noted that private institution which imparts education to students from the age of six years onwards, including higher education, perform public duty primarily a State function, therefore are amenable to judicial review of the High Court under Article 226 of the Constitution of India.

• In the case of Managing Director, Uttar Pradesh Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee (AIR 1980 SC 840), the court noted that the function of State to preserve public peace, exact taxes and defend the frontiers has long ceased and is more about securing ‘social, economic and political justice’, to preserve ‘liberty of thought, expression, belief, faith and worship’ to ensure ‘equality of status and of opportunity’. And hence, it doesn’t make sense that corporations incorporated under the Companies Act but owned by the Government does not observe the equality clauses of the constitution in the matter of employment and in its dealings with the employee like government organisation.

Comparison of Employment policies in foreign countries

• In Harvard university, the employment term consists for Notice of Lay-Off and Partial Lay-Off provisions as, An exempt or overtime-eligible non-bargaining-unit employee will be notified in writing at least 60 calendar days prior to the elimination of his or her position as a result of a reorganization, reduction in workload or loss of funding.

• In some circumstances it may be necessary or preferable to provide pay in lieu of notice. In these cases, the employee will not remain on the payroll during the notice period but will remain eligible for the career counseling services described in this policy for an additional period equivalent to the applicable 60- or 30-day notification period.

• So, there is no absolute termination of an employee. There is a provision to extend work for 60-30 days to help the professor maintain a flow and not be rendered jobless all of a sudden.

• In Cambridge University, the employment term for there is no direct provision for removal of professor. The professor can resign if they want to. However, there is a provision for Redundancy and redeployment which reads, “In the event that there is no longer a need for a job to continue (usually where a fixed-term contract is due to end), the University’s policy is to attempt to redeploy any member of staff still employed in that capacity. If redeployment is not feasible, a redundancy payment will be made for those with a qualifying period of service. If you are in this position, you should first consult your head of institution, who may seek the assistance of the Human Resources Division in your redeployment.”

• The language suggests that the university is professor friendly and doesn’t abruptly end tenure of field experts as they realize the value of human resources.

Conclusion

The practice shown by private education institutes is likely to dampen the efforts of India’s global outreach to foreign researcher and faculty to India to improve standard of education in India. Such policies adopted by the institutes deter faculty from coming to India and establishing a career here. Further, such policies also promote Indian intelligence to go abroad in search of better offers an opportunities leading to brain drain.

[1] https://ugcnet.nta.nic.in/