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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
WP(C) NO.5831/2013
1. Punal Kumar Das S/o Sri Tarun Chandra Das, R/O- Village Dakshin Ganatgari,
P.O- Chakchaka Bazar, P.S- Sorbhog, Dist- Barpeta, Assam.
2. Sri Udayan Sarma, S/o Mr. Probin Sarma, R/O- Village Bongaon,
P.O- Bongaon, P.S- Kamargaon, Dist- Golaghat, Pin- 785611, Assam.
3. Hemen Kumar Das S/o Lohit Kumar Das, R/O- Village Madanpur,
P.O- Loharghat, P.S- Palashbari, Dist- Kamrup(R), Pin- 781120,Assam.
4. Tarique Mahmood S/o Sk. Sultan Mahmood,
R/O- Village Azara, Hathkhowapara, Opp. Of GIMT Engineering College, P.O- & P.S- Azara, Dist- Kamrup ( R) Assam.
5. Shri Taufique Ahmed S/o Shri Faziuddin Ahmed, R/O- Village Moidomia,
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P.S- North Lakhimpur, Dist- Lakhimpur, Assam.
6. Madhumita Barman D/o Lt. Prasenjit Barman, R/O- B.G.R. Township, Quarter No. 521 A,
P.O & P.S- Dhaligaon, Dist- Chirang BTAD, Assam.
………………………… Petitioners - Versus- 1. The State of Assam, represented by the
Commissioner and Secretary, Higher Education, Assam, Dispur, Guwahati-6.
2. The Director, Higher Education, Assam,
Kahilipara, Guwahati-19. 3. The Cotton College State University, represented
by the vice Chancellor CCSU, Panbazar Ghy-1. 4. The Registrar, Cotton College State University,
Panbazar Ghy-1. 5. The Officer of Special Duty, CCSU, Panbazar
Ghy-1. 6. Sikkim Manipal University, represented by the
Vice Chancellor, 5th mile, Tadong, Gangtok, 737102, Sikkim, India.
7. The Registrar, Sikkim Manipal University, 5th mile,
Tadong, Gangtok, 737102, Sikkim, India. 8. The Head of the Center cum-Managing Director,
Sikkim Manipal University, T.R. Phukan road, Choladhara, Jorhat.
3
9. The Kuvempu University, represented by the Vice Chancellor Jnana, Sahyadir, Shankaraghatta-577451, Shimoga District, Karnataka, India.
10. Head of the Center cum Managing Director, NIIT,
Panbazar, (Under Kuvempu University) Ganeshguri, Ghy-6.
11. The Registrar, Kuvempu University, Jnana,
Sahyadir, Shankaraghatta-577451, Shimoga District, Karnataka, India.
12. The University Grants Commission, represented by
the Secretary, New Delhi-1. ……………… Respondents BEFORE
HON’BLE MR. JUSTICE B.K. SHARMA
For the petitioners : Mr. M.K. Choudhury, Adv MR. M.U. Mondal, Adv For the respondents : Mr. D. Saikia, AAG Mr. R. Chakraborty, Adv Mr. B. Choudhury, Adv Mr. A. Chamuah, Adv Mr. P.K. Goswami, Adv Mr. B. Jha, Adv Mr. T.P. Rajendra Kr. Adv Mr. D. Choudhury, Adv Ms. U. Bhattachryee , Adv Mr. B. Bora, Adv Date of hearing : 30.01.2014 Date of Judgment : 14.03.2014
4
JUDGMENT AND ORDER (CAV)
1. The challenge in the writ petition filed by six
petitioners is the Annexure-K notification dated 19.09.2013 of
the Cotton College State University (respondent No.3), by
which on the basis of the purported clarifications given by the
University Grants Commission (UGC) vide public notice dated
27.06.2013, has cancelled the admission of the petitioners to
the MCA Degree Programme under the University. For a ready
reference, the impugned notification is reproduced below:-
“The University Grants Commission (UGC),
vide its public notice no. , F. 27- 1 /201 2 (CPP- II)
dated 27th June, 201 3 has clarified that “a
central or State Government University can
conduct courses through its own departments, its
constituent colleges and/or through its affiliated
Colleges” and also “a university established or
incorporated by or under a State act shall
operate only within the territorial jurisdiction
allotted to it under its Act and in no case beyond
the territory of the State of its location”.
Besides, the notice also states that “no
University, whether central, state, private or
deemed, can offer its programme through
5
franchising arrangement with private coaching
institutions even for the purpose of conducting
courses through distance mode”. In the said
notification, the UGC has also stated that “a
private university established under a state act
shall be a unitary university. A private University
may be permitted to open off campus centres,
off- shore campuses and study centres after five
years of its coming into existence subject the
fulfillment of conditions as laid down under UGC
(Establishment of Maintenance of Standards in
Private Universities) Regulations, 2003. As of
now, the UGC has not granted permission to any
Private University to establish off campus/ study
centre.
In view of the clarifications given by the
UGC vide the public notice mentioned above, the
provisional admission of students as listed
hereunder, to the MCA degree programme of
Cotton College State University based on degrees
obtained under circumstances not allowed by the
UGC stands cancelled. The fees collected from
these students shall be refunded.
1 . Ms. Madhumita Barman, Roll No. MCA 09/1 3
2. Mr. Taufique Ahmed, Roll No. MCA 1 2/1 3
3. Mr. Hemen Kumar Das, Roll No. MCA 1 3/1 3
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4. Mr. Rajkumari Rai, Roll No. MCA 1 5/1 3
5. Mr. Punal Kumar Das, Roll No. MCA 1 8/1 3
6. Mr. Rahul Dey, Roll No. MCA 1 9/1 3
7. Mr. Tarique Mahmood, Roll No. MCA 20/1 3
8. Mr. Udayan Sarma, Roll No. MCA 24/1 3”.
The impugned notification having been issued in
reference to the public notice dated 22.06.2013, the said
public notice (Annexure-G) is also reproduced below for a ready
reference:-
“The Commission has come across many
advertisements published in National Dailies
offering opportunities for the award of university
degrees though various franchise programmes
conducted by certain private institutions. These
private establishments claiming themselves as
study centres or learning centres of different
universities enroll students for various degree
programmes and also claim to be responsible for
teaching and conduct of examinations. The faculty
and the infrastructure belong to these private
agencies. The concerned university except
providing syllabus and teaching materials, has no
mechanism to monitor and maintain the academic
standards of education has led to widespread
criticism. The Commission has taken a serious view
7
of these misleading advertisements appearing in
various newspapers.
It is, therefore, clarified for the information of
all concerned, including students and parents that:
(a) A Central or State Government University can
conduct through its own departments, its
constituent colleges and/or through its affiliated
Colleges;
(b) A university established or incorporated by or
under a State act shall operate only within the
territorial jurisdiction allotted to it under its Act
and in no case beyond the territory of the state
of its location;
(c) The private universities and deemed universities
cannot affiliate any college or institution for
conducting courses leading to award of its
diplomas, degrees or other qualifications.
(d) No university, whether central, state, private or
deemed, can offer its programmes through
franchising arrangement with private coaching
institutions even for the purpose of conducting
courses through distance mode.
(e) All universities shall award only such degrees as
are specified by the UGC and published in the
official gazette.
8
(f) The Universities shall conduct their first degree
and Masters Degree programmes in accordance
with the regulations notified by the Commission in
this regard.
In this connection, the students and the
general public are also hereby informed of the
following regulating provisions pertaining to
different types of universities.
A. UGC Regulations on Private Universities
A private university established under a state Act
shall be a unitary university, A private university
may be permitted to open centers, off shore
campuses and study after five years of its coming
into existence subject to the fulfillment of
conditions as laid down under UGC (Establishment
of & Maintenance of Standards in Private
Universities) Regulations, 2003. As of now, the
UGC has not granted permission to any Private
University to establish off- campus/study centre.
B. UGC Regulations on Deemed Universities
A Deemed University shall operate within its
Headquarters or from off campuses/ off- shore
campuses which are approved by the Government
of India through notification published in the
official gazette.
9
In the case of distance education programmes, no
institution deemed to be university so declared by
the Govt. of India after 26th May, 201 0 [date of
publication of UGC (Institutions Deemed to be
Universities) Regulations, 201 0] is allowed to
conduct courses in the distance mode.
The institutions deemed to be universities declared
before 26th May, 201 0 are not allowed to conduct
courses in distance mode from any of its off-
campuses approved after 26th May, 201 0.
Approval for new courses and extension of
approval of the courses already run by the
Deemed to be Universities under distance mode
would be granted by the UGC subject to the
fulfillment of conditions as laid down by the UGC.
The UGC has not granted approval to any deemed
to be university study centres.
Any information/ clarification with regard to
recognition of Private Universities/ Deemed
Universities and the courses offered by them may
be obtained from JS (CPP- I) UGC, Bahadurshah
Zafar Marg, New Delhi.
C. Distance Education programmes of the Central
Universities and State Govt. Universities.
10
The Central/ State Govt. Universities can
conduct courses through distance mode in
accordance with the provisions of their respective
Act and after the approval of the UGC.
The information relating to recognized
universities list of specified degrees and all the
relevant regulations/ instructions/ guidelines of
the UGC are available on UGC website:
www. ugc. ac. in.
The students are, advised not to take
admission in the unapproved Study Centres, Off-
Campus Centres, Franchisee Institutions, Colleges/
Institutions claiming to be affiliated with Private
Universities or Deemed Universities.
2. Basic Facts:-
The petitioners No.1, 3, 4, 5 and 6 have passed B.Sc
(IT) from Kuvempu University (respondent No.9) through NIIT
(respondent No.10), Panbazar and Ganeshguri Centres of
Guwahati. On the other hand, the petitioner No.2 has passed
the said course from Sikkim Manipal University (respondent
No.6) through the particular centre situated at T.R. Phukan
Road, Choladhora, Jorhat.
In response of the introduction of Master of Computer
Application (MCA) course for the season 2013-2014, the
petitioners submitted their application forms on 27.07.2013 for
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the admission to the said Course. They came out successfully in
the entrance examination held on 11.08.2013, results of which
were declared on 12.08.2013. Thereafter, they were admitted
to the MCA course on 17.08.2013 and started attending class
w.e.f. 19.08.2013.
3. According to the petitioners, both the Universities,
namely, Kuvempu and Sikkim Manipal having had the recognition
of the UGC, the B.Sc (IT) Degree awarded by them through
NIIT and the particular centre respectively are valid in the eye
of law and thus, the Cotton College State University could not
have issued the impugned notification dated 19.09.2013. In
paragraph 11 of the writ petition, the petitioners have also
stated that similarly situated students are doing their course
of MCA under various Universities such as Gauhati University,
Dibrugarh University, Tezpur University and even Cotton
College State University (who are in 2nd and 3rd Semester) and
as such, the admission of the petitioners base on the B.Sc (IT)
degree awarded by the said two Universities are also valid in
law.
4. In paragraph 12 of the writ petition, the petitioners
have contended that the public notice dated 27.06.2013 of the
UGC cannot have any retrospective application and the
petitioners having completed their B.Sc(IT) Course and
obtained the Degree in the year 2012, the said public notice
cannot be made applicable retrospectively. The petitioners have
further contended that the action of the University Authority
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in issuing the impugned notification is violative of Article 14 of
the Constitution of India and also the Principals of Natural
Justice as before cancellation of their admission to MCA
course, they were not provided with any opportunity of being
heard.
5. Stand of the Respondent No. 1 (state
Government in the Education Department): -
Opposing the writ petition, the State of Assam in its
affidavit filed through the Deputy Secretary, Education
(Higher) Department, has contended that the NIIT is neither a
University nor a College and that the petitioners having pursued
the B.Sc(IT) Degree under Kuvempu University and Sikkim
Manipal University through Off Campus Study Centers, their
B.Sc(IT) Degree is not recognizable and thus the following
public notice of the UGC referred to above, the Cotton College
State University Authority rightly issued the impugned order.
It has been contended that the petitioners could not have
obtained the Technical Degree of B.Sc(IT) involving laboratory
works through distance education mode, without undertaking
the said laboratory course.
6. The State Government has also referred to the
Annexure-1 Office Memorandum dated 01.02.2012 on the
subject of guidelines to be followed for obtaining of UGC
clarification in regard to M.Phil/P.hd. Clarification, which is
records below:-
13
“OFFICE MEMEORANDUM
Sub: Guidelines to be followed for obtaining of
UGCX qualification in regards to M. Phil/
Ph. D qualification.
It has come to the notice of the
Government that some faculties working in
Government and Provincialised Degree Colleges as
well as Engineering and other Govt. Institutions of
Higher Education have got admitted in some of the
Universities who have affiliated Colleges and
started off- campus center(s) without proper
jurisdiction and which are running in violation of
UGCs Regulations. The Universities which are
conferring Degrees as per UGCs Regulation, their
particulars in the UGC website (www. ugc. ag. in). As
per UGC, the Universities are competent to award
Degrees as specified by the UGC under section 22
of the UGC Act only with the approval of the
Statutory Council, through their main campuses.
Where ever approval of the Statutory
council is not a pre- requisite to start a
programme, the Universities are required to
maintain the minimum standard regarding Academic
and physical infrastructure as laid down by the
Statutory Council.
14
As per UGCs norm and guideline, a
University cannot affiliate an Institution/ College
as well as they cannot establish off campus
center(s) beyond the territorial jurisdiction of the
concerned State. If any faculty of the
Institutions and Colleges as mentioned above is
found to have procured or is perusing Higher
studies for Degrees in such institutions/ College do
not function as per UGC Guideline Grade, their
Degrees will not be treated as valid Degrees for
consideration for promotion to the next higher
Grade i. e. for placement of Sr. Grade/ Selection
Grade/ Associate Professor & Principal etc. and
also in case of appointment to any post of
faculties.
If any faculty is found to have been
continuing to pursue academic even after this
O. M. is notified, the matter will be dealt with as
per provisions of Disciplinary and Appeal Rule for
Violation of prescribed guidelines.
Further for enrollment as in- service for
higher studies during the service period approval
of proper authority is mandatory. If anybody is
found to violate the aforesaid requirement their
cases shall also be dealt with as per existing Rules
and Regulations of Government of Assam.
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S/d- H K Sharma, IAS
Commissioner & Secretary to the Govt. of Assam
Higher Education Department”.
7. Counter Affidavit of Respondent No. 1 2
(University Grants Commission): -
In the counter affidavit filed by the UGC, it has been
stated that the issue involved in the writ petition is the subject
matter of Distance Education Council (DEC), which was created
under the Indira Gandhi National Open University IGNOU)
Act, 1 985. It has further been stated that DEC has been
dissolved w.e.f. May, 2013 and its function and powers are now
vested/merged with the UGC. In paragraphs 18, 19, 20 and 23
of the counter affidavit, it has been stated thus:-
“That the deponent respectfully submits
that the moot question to be adjudicated in the
instant proceeding is that whether the B. Sc. (IT
Degree obtained by the Petitioners through
distance learning mode having franchising
arrangement with NIIT and other centre are valid
or not? To reply this question the answering
respondent places its response as follows:
a) The Universities viz. Sikkim Manipal University,
Sikkim and Kuvempu University, Karnataka had the
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provisional Institutional recognition from erstwhile
DEC under Distance Learning mode at the relevant
point of time.
b) But none of the Universities in India who offer
Distance Learning Course/Degree are empowered
to franchise study centres and if it is done then
the same will be illegal and without any authority.
c) Apart from the above, the Degrees awarded by
the said Universities would be valid provided the
programme was approved by the Statutory Body of
the concerned University.
1 9. That in the instant case as stated in
Paragraph 1 0 of the Petition that the Petitioners
had obtained their degrees from the said 2
universities having franchising arrangement with
NIIT at Guwahati and Jorhat. Considering the
same, since neither the University Grants
Commission nor the erstwhile DEC Approves or
Approved any study center for offering distance
learning programme, the degree awarded and/or
obtained through such mode will be invalid.
20. That for better appreciation of this Hon’ble
Court, the answering respondent begs to bring on
record some communications taken place between
the Kuvempu University and Sikkim Manipal
University and DEC.
A) KUVEMPU UNIVERSITY (KU):
17
The DEC vide its letter No. DEC/2009/4938
dated 1 7/1 2/2009 while communicating
continuation of Provisional Institutional Recognition
clearly stated that “the Distance Education Council
Prohibits franchising of Study Centres. Thus your
Institution will not franchise any study center”
(Para 7 of the said letter). The UGC vide its
letter dated 1 6/09/201 3 has once again
categorically communicated the KU that though
their distance learning programmes were approved
during Institutional recognition but franchising
arrangement for study center or with any other
organization was never approved. The bare perusal
of the aforesaid letter would go to show that at
no point of time the so called study centers are
approved by DEC/University Grants Commission to
offer any degrees through distance learning
programmes. It can also be transpired from the
above referred letter that the KU, still, has been
asking for approval (by its letter dated
1 1 /09/201 3) from the DEC /University Grants
Commission to adopt the policy of franchising
study centers. Thus, any degree offered/awarded
through such manner will be invalid.
B) The status of Sikkim Manipal University is no
better than the KU or any other University. The
erstwhile DEC time and again has been
18
communicating the SMU as regard the recognition
of their University and manner of offering degree
through distance learning mode. The letter dated
1 5. 1 0. 2009 vide letter No.
DEC/Recog/2009/3947 was explicitly dealing with
the said matter and it was made clear that the
franchising of study centers are strictly
prohibited (Paragraph 7 of the said letter dated
1 5. 1 0. 2009)”.
23. That considering the above situations and also
considering the admissions made by the Petitioners
that their degrees were obtained under
franchising arrangement with NIIT in Assam, it is
submitted that those degrees are not valid.
8. Counter affidavit of Kuvempu University
(Respondent No. 1 1 ): -
Justifying the Degrees conferred to the petitioners,
the Kuvempu University in its affidavit has highlighted as to
how the University came into existence as a State University
under the Karnataka State Universities Act, 1 976, replaced
by the Karnataka State University Act, 2000 recognized by
the UGC u/s 2(f) and 12(b) of the UGC Act 1956. It has been
contended that the Kuvempu University has been offering
learning and education through distance mode by obtaining the
institutional recognition to the University in 2007-08 by the
then DEC of IGNOU. It has been categorically stated that the
19
institutional recognition was valid till the programme wise
recognition was granted by the DEC after conducting inspection
under its guidelines. It is the categorical stand of the
university that there was institutional recognition for B.Sc(IT),
M.Sc(IT) and B.Sc(ITIM) Courses.
In paragraph-5 of the counter affidavit, it has been
stated that in a letter dated 16.09.2013, the UGC clarified that
the DEC of IGNOU had accorded Provisional Institutional
recognition to the university in 2008-09 in respect to the
programmes approved by the Statutory Bodies of the
university through distance mode. It was also clarified by the
said letter that the institutional recognition was valid till such
time programme wise recognition was granted by the DEC after
conducting inspection under its guidelines. Referring to the
inspection conducted by the DEC on 28.08.2011 and 29.08.2011
and its recommendations, the Kuvempu University in its
affidavit has stated that the said recommendations were
placed before the Tripartite Committee of UGC-AICTE-DCE
and thereafter before the DEC, which approved 31 programmes
conducted by the University and the same was communicated
vide letter dated 27.08.2012. Referring to this letter
Annexure-2, the categorical stand of the University is that it is
only in this letter dated 27.08.2012, the aforesaid three
courses, namely, B.SC(IT), M.SC(IT) and B.Sc(ITIM) courses
were not included, meaning thereby that for imparting the said
courses, the University had the required permission.
20
In Paragraph-6 of the counter affidavit, the University
has referred to the Annexure-3 communication dated
16.09.2013 of the UGC, by which it was clarified that the
recognition of the aforesaid three programmes by Kuvempu
University in distance mode, during the period of educational
institutional recognition leading to award of Degrees would be
valid provided that the programmes were approved by the
Statutory Bodies of the University till the period the
University received programme wise recognition of the
erstwhile DEC. As regards the programme wise recognition, it
has been contended that the aforesaid three courses were
approved by the Statutory Bodies of Kuvempu University and
appropriate statutes were also framed empowering the
University to start the said courses, which had the approval of
the Chancellor of the University and thus, the enrollment of
the petitioners to the B.SC(IT) course conducted by the
University under Distance Education Mode (DEM) and award of
the degrees to them during the year November/December,
2012 is valid.
9. Affidavit of Respondent No. 1 0 (NIIT): -
Supporting the B.Sc(IT) Degree, obtained by the
petitioners, it has been stated that the respondent No.10 is
widely recognized as the pioneer in creating the non-formal
Information Technology (IT) education movement in India,
which ultimately led to the creation of trained software
professionals, who fuelled India’s eminence in IT in the world.
21
The affidavit has referred to the numerous achievements of
respondent No.10. Referring to the particular programme i.e.
B.Sc(IT), it has been state in the affidavit that the respondent
No.10 arrived at an arrangement with the Kuvempu University in
order to facilitate those students of respondent No.10, who
wished to undergo a formal academic programme. In the said
arrangement, only two programmes relating to Information
Technology i.e. B.Sc(IT) and M.SC(IT), which was relevant for
NIIT’s students were offered by the respondent No.9 at its
study centers operated from the premises of the respondent
No.10. The facilities at NIIT premises are independently
evaluated by the respondent No.9 on a case to case basis and
accordingly the respondent No.9 is to decide whether the said
facility as Kuvempu University Study Centre should be used or
not. According to this respondent, the petitioners enrolled with
NIIT, met the academic prerequisite and requirements of the
respondent No.9 at the Kuvempu University Study Centre.
In Paragraph-9 of the counter affidavit, the NIIT has
contended that it has provided the use of its infrastructures
to Kuvempu University for use of the same as Kuvempu
University Study Centre, since it had already been into the
training on IT since 1982 and it had the high quality
infrastructures like Classroom, Library, Computer Laboratories,
Licensed Software and necessary technical facilities. It has
also been stated that eligibility for admission into the B.Sc(IT)
and M.Sc(IT) programmes are determined by respondent No.9
as per the rules and the students so enrolled are directly under
22
the respondent No.9 strictly in accordance with their rules and
regulations. The programme fees are also directly collected by
the respondent No.9 from all such students and the Roll
Numbers, Identity Cars etc are also issued by the University.
Further narrating the course of study, it has been
contended in the affidavit that study materials are also
provided by the respondent No.9 and their examinations are
also conducted directly under respondent No.9. In paragraphs
10, 11, 12, 13, 18, 19 and 20 of this affidavit, it has been stated
thus:-
“1 0. I further state that the aforesaid
arrangement was distinct from the case of
franchising. Firstly, the respondent No. 1 0 only
provided its infrastructure and support and all the
remaining activities were undertaken by the
respondent No. 9. Secondly as stated above, the
arrangement was entered only for the sake of
Bonafide students as opposed to offering the
courses to public at large on behalf of respondent
No. 9. Thirdly, it was a case of selective offering
of aforesaid BSc(IT) and MSc(IT) programmes
which gelled with the respondent No. 1 0’s own
activity of offering IT training as opposed to
acting as franchised study center which normally
offers any and every program of the franchisor to
the public without making any distinction.
23
Fourthly, normally a franchisee- franchisors
relation operates in a paradigm where in the
franchisee carries out franchisors activities
exclusively where as in the instant case the
respondent No. 1 0 is primarily into offering skill
development programs in IT and to complement
the said activity the respondent No. 1 0 arrived at
an arrangement with respondent No. 9. Thus both
these activities are concurrently being carried out
at the premises of respondent No. 1 0. Fifthly,
the entire arrangement arrived at between the
parties including the provision lateral entry was a
unique effort which is not in the case of any
franchisee- franchisor relationship. Last but not
the least it was predominantly under these
prevailing circumstances that the aforesaid
arrangement never created any discomfort to any
of the regulatory bodies including respondent No.
1 2 and DEC. Neither respondent No. 1 0 nor
respondent No. 9 ever received or were called for
any clarification in this regard by any of the
respondents.
1 1 . I state that the respondent No. 9 has been
established by an Act of State Legislature under
the Karnataka State Universities Act, 1 987 ( in
short KSU Act) and has been recognized by the
24
respondent No. 1 2 vide a certificate to that
effect which was issued on 21 . 01 . 2003.
1 2. I state that on the other hand the erstwhile
Distance Education Council constituted under the
IGNOU Act, 1 985(in short DEC), which later came
under control of the respondent No. 1 2 vide
notification dated 29. 1 2. 201 0 issued by the
Central Government and got rechristened as
Distance Education Bureau had accorded
institutional recognition to the respondent No. 9
from the academic year 2007- 08 till 201 1 - 201 2
vide different communications issued by DEC from
time to time. By virtue of the said institutional
recognition it was confirmed that the respondent
No. 9 was accorded recognition for offering
programs approved by the statutory bodies, (i. e.
the Directorate of Distance Education) of
respondent No. 9. It was also conveyed that DEC
had decided not to insist on territorial jurisdiction
to be followed by the institutions in offering
programs through distance mode and the
respondent No. 9 was left to be governed by its
own Acts and Statutes on the said issue.
1 3. I state that the KSU Act authorizes the
respondent No. 9 to offer programs in distance
education mode beyond the state of Karnataka.
25
Furthermore, the Rules and Rulations framed by
the Directorate of distance Education also
authorized the respondent No. 9 to inter alia
offer the BSc (IT) and MSc (IT)
Programs in the distance mode. Accordingly
respondent No. 9 stood recognized with the
statutory sanction to offer BSc (IT) courses to
the petitioner Nos. 3, 4 and 6 in the year 201 0
and for that matter even in the year 201 1 .
1 8. I state that ironically the respondent No. 3
through respondent No. 4 illegally and arbitrarily
issued the Notification dated 1 9. 09. 201 3 in
colorable exercise of its power to the extent of
striking down admission of Petitioner Nos. 3, 4
and 6. The same is preposterous for more than
one reason. Firstly, the respondent No. 3
conveniently overlooked and ignored the factum of
institutional recognition granted to the Respondent
No. 9 for the relevant period which was
reconfirmed by the regulatory body (DEC) time
and again. Secondly, it was unjust and
unreasonable to equate the respondent No. 1 0
with ‘private coaching institute’ for that matter
and arbitrarily concluded that the recognition
accorded by erstwhile DEC had no legal sanction
of the respondent No. 1 2. Therefore the said
26
notification dated 1 9. 09. 201 3 does not withstand
the legal scrutiny and is liable to be quashed by
this Hon’ble Court.
1 9. It is respectfully submitted that on the
relevant dates of taking admission by the
petitioner Nos. 3, 4 and 6 into BSc (IT) Program
of the respondent No. 9 the respondent No. 9
stood recognized and had the legal sanction of the
concerned statutory body to offer the said
program at KU Study Center operated from NIIT
premise at Panbazar and Ganeshguri at Gauhati.
The rigors of Notice dated 27. 06. 201 3 of the
Respondent No. 1 2 does not disrobe the
respondent No. 9 of the institutional recognition
granted to it by DEC in past when the petitioner
Nos. 3, 4 and 6 were offered admission in BSc
(IT) Program of respondent No. 9.
20. I further submit that the respondent No. 3
had illegally and arbitrarily construed the Notice
dated 27. 06. 201 3 of the respondent No 1 2 to be
made applicable retrospectively to the prejudice of
petitioner Nos. 3, 4 and 6 who have spent their
valuable years diligently pursuing the BSc (IT(
Program which is evident from the fact that they
had successfully (a) obtained their BSc (IT)
Program degree and (b) cleared the entrance test
27
conducted by the respondent No. 3 for giving
admission in their MCA Program. The respondent
No. 3 conveniently and intentionally overlooked and
ignored the fact that what was relevant was the
date of taking admission by these petitioners in to
the BSc (IT) Program of the respondent No. 9,
not the date of passing out of the said program.
As stated above, since these petitioners had
taken admission in the year 201 0 when the
institutional recognition to the respondent No. 9
was very much subsisting, the coercive action of
the cancelling their admission by the respondent
No. 3 is liable to be undone by this Hon’ble
Court”.
10. Reply affidavit of petitioners against the
counter affidavit of respondent No. 1 :-
In the reply affidavit filed by the petitioners, while
reiterating and reconfirming the pleas taken in the writ
petition, the petitioners have contended that the public notice
dated 27.06.2013 does not create any embargo with regard to
admission of the petitioners in MCA course in any University.
Referring to the Clause-C of the said public notice, the
petitioners have contended that the Central/State Government
Universities can conduct courses through Distance Mode in
accordance with the provisions of their respective Act and
after the approval of UGC. The petitioners have further
28
contended that the Office Memorandum dated 01.02.2012
referred to above as issued by the State Government also does
not create any embargo with regard to the admission of the
petitioners in any University including Cotton College State
University. Inasmuch as, both Kuvempu University and Sikkim
Manipal University are UGC recognized universities, which can
conduct courses through Distance Education Mode as reflected
in Kuvempu University Act, 1 987, and the Sikkim Manipal
University of Health, Medical and Technological Science
Act, 1 995. In paragraph-9 of the affidavit, the petitioners
have contended that UGC is the competent authority to clarify
the position as to whether the Degree awarded by Kuvempu
University and Sikkim Manipal University is valid or not.
11. I have heard Mr. M.K. Choudhury, learned senior
counsel assisted by Mr. M.U. Mandal, learned counsel for the
petitioners. I have also heard Mr. D. Saikia, learned Additional
Advocate General, Assam, appearing for the State Government,
who in addition to his oral submissions has also submitted a
written argument. I have also heard Mr. P.K. Goswami, learned
senior counsel assisted by Mr. B.Jha, learned counsel appearing
for the NIIT(respondent No.10). Mr. T.P. Rajendra Kumar,
learned counsel appearing for the Kuvempu University,
respondent No.11, advanced his argument while Mr. A. Chamuah,
learned counsel has made submission on behalf of the UGC,
respondent No.12. None having appeared for the Sikkim Manipal
University (respondent No.6), there was no occasion for
29
advancing any argument on behalf of the said University. I have
also gone through the materials on record.
12. While Mr. M.K. Choudhury along with Mr. Mandal,
learned counsels appearing for the petitioners argued that the
B.Sc(IT) degrees obtained by the petitioners are legally valid
and consequently their admissions into the MCA course could
not have been cancelled by the Cotton College State University
Authority and that too giving retrospective effect to the public
notice dated 27.06.2013, Mr. D. Saikia, learned AAG, Assam in
his long an elaborate argument submitted that in the name of
distance education, the Kuvempu University and Sikkim Manipal
University are in fact have established a Study Centre through
franchising arrangement with private coaching institutions and
thus the Degrees obtained by the petitioners through the so
called study centers of NIIT and the particular center of
Sikkim Manipal University cannot be recognized. He has also
placed reliance on certain decisions, which are as follows:-
(i) (2005) 5 SCC 420 (Prof. Yashpal and another –
vs- State of Chattisgarh and others);
(ii) (201 3) 1 SCC 223 (National Council for Teacher
Education and another –vs- Venus Public Education
Society and others);
(iii) (2009) 4 SCC 590 (Annamalai University –vs-
Secretary to Government, Information and Tourism
Department and Others);
30
(iv) (1 995) 1 SCC 745 (Chandigarh Administration
and another –vs- Jagjit Singh and another);
(v) (201 0) 2 SCC 422 (Union of India and another –
vs- Kartick Chandra Mondal and Another);
(vi) (2007) 6 SCC 35 (Kurmanchal Institute of
Degree and Diploma and others –vs- Chancellor,
MJP Rohil Khand University and others) and
(vii) 201 3 (4) GLT 528 (Mukta Ram Deka and ors –
vs- State of Assam and Ors).
13. Mr. A. Chamuah, learned counsel representing the UGC
supporting the aforesaid argument of Mr. Saikia, learned AAG,
Assam made his submissions in reference to the stand of the
UGC in its affidavit. He also vehemently submitted that the
particular course undertaken by the petitioners through the
franchising arrangement cannot be said to be the course
undertaken under Distance Mode Education recognized by the
UGC.
14. Mr. P.K. Goswami, learned senior counsel appearing on
behalf of the NIIT (respondent No.10) submitted that from
the materials on record, there is absolutely no manner of doubt
that the UGC recognized the Degree of BSc(IT) conferred by
the respondent universities and its course at least up to 2012
and the petitioners having obtained the same undergoing the
courses during the period prior to 2012 and having obtained the
Degree in 2012, the subsequent clarification issued by the UGC
31
is not applicable to them and accordingly the said University of
Assam could not have issued the impugned notification. As
regards the role of NIIT in the matter of undertaking the
course by the petitioners under Kuvempu University, he
submitted that the role of NIIT is that of a Study Centre of
Kuvempu University. He submitted that NIIT having all the
required infrastructures has an agreement with the Kuvempu
University and it is the Kuvempu University, which undertook all
the required formalities towards imparting the course and
conferring the Degree to the petitioners. Emphasizing on the
role of NIIT as facilitator with the arrangement for the same
of the Kuvempu University, he submitted that the course
undertaken by the petitioners under Kuvempu University
through NIIT is recognized one and so also the Degree
conferred by the Kuvempu University pursuant to successful
undertaking of the said course by the petitioners.
15. Learned counsel representing the Kuvempu University
while adopting the aforesaid argument of Mr. Goswami,
submitted that since the Kuvempu University has its
recognition of the UGC for imparting Distance Mode of
Education as per the provisions of its own statute, the
impugned action on the part of the Cotton College State
University is opposed to the said position. He further
submitted that the said University passed the impugned
notification misinterpreting the UGC’s public notice. He also
placed reliance on the decision of the Madras High Court
32
reported in AIR 201 2 Madras 1 70 ( Government of India –
vs- SRM University).
16. It will be appropriate to refer at this stage to the
decisions, on which the learned Additional Advocate General,
Assam and the learned counsel appearing for the respondents.
In Chandigarh Administration and another (Supra), the Apex
Court held that the mere fact that the authority had passed a
particular order in the case of another person similarly
situated, the same can never be the ground for issuing a writ in
favour of another person on the plea of discrimination. This
decision has been referred to, to counter the argument that
similarly situated candidates have been allowed to prosecute
their MCA course in other universities including the Cotton
College State University, of which the petitioners were
students before the impugned order.
17. In Prof. Yashpal and another (Supra), on which the
learned Additional Advocate General, Assam has heavily placed
reliance, the Apex Court came down heavily on mushroom
growth of private universities. In the said case, the particular
provision of the particular Adhiniyam were declared to be ultra
virus and was struck down. In the said case, the Apex Court
emphasized on maintenance of high standards and achievements
of uniformity in standards in higher education and research.
Paragraph 33, 37, 39, 49 and 60, to which the learned
Additional Advocate General, Assam has specifically referred
to, are reproduced below:-
33
“33. The consistent and settled view of this
Court, therefore, is that in spite of incorporation
of universities as a legislative head being in the
State List, the whole gamut of the university
which will include teaching, quality, quality of
education being imparted, curriculum, standard of
examination and evaluation and also research
activity being carried on will not come within the
purview of the State Legislature on account of a
specific entry on coordination and determination of
standards in institutions for higher education or
research and scientific and technical education
being in the Union List for which Parliament alone
is competent. It is the responsibility of higher
education or research throughout the country and
also uniformity in standards is maintained.
37. It is important to note that in view of Section
22 of the UGC Act, the right of conferring or
granting degree can be exercised only by a
university under Section 3 of the aforesaid Act or
institution especially empowered by an Act of
Parliament to confer or grant degrees. What is a
“degree” and what it connotes is not given in the
UGC Act but the meaning of the word as given in
dictionaries and standard books is as under:
Websters Third New International Dictionary:
34
1 . “a title conferred upon students by a college,
university, or professional school upon completion
of a unified programme of study carrying a
specified minimum of credits, passing examinations
and often completion of a thesis or other
independent research project”.
2. “a grade or class of membership attained in a
ritualistic order or society denoting a stage of
proficiency often after a set ordeal or
examination”.
Whartons Law Lexicon:
“the state of a person, as to be a barrister- at-
law, or to be a Bachelor or Master of Arts of a
University”.
Chambers Twentieth Century Dictionary:
“a mark of distinction conferred upon by
universities whether earned by examination or
granted as a mark of honour”.
P. Ramanatha Aiyar’s Law Lexion (2nd Edn):
“a mark of distinction conferred upon a student
for proficiency in some art of science university
diploma of specified proficiency”.
Encyclopedia Americana
“Degree”- the title conferred by a college or
university signifying that a certain step or grade
has been attained in an area of learning. The
award of a diploma conferring the bachelors
35
degree marks completion of undergraduate study.
The masters and doctors degree reward graduate
study. Other degrees constitute evidence of
preparation for professional work- the MD (doctor
of medicine) for example.
In the 20th century, however, the MA is granted
in American universities and in those of England
and the Commonwealth of Nations (apart from
Oxford and Cambridge) on the basis of study
beyond the BA and the presentation (usually) of a
thesis. An exception is Scotland, where the MA
has been the first degree conferred in all six
universities ever since their founding. The
bachelor of philosophy and bachelor of letters
degrees are given for work beyond the MA.
The New Encyclopaedic Britannica
“Degree”- in education any of several titles
conferred by colleges and universities to indicate
the extent of academic achievement. The
hierarchy of degrees dating from the 1 3th
century, once resembled the medieval guild
system. In the United States and Great Britain
the modern gradation of academic degrees is
usually bachelor (or baccalaureate), master, and
doctor. With some exceptions intermediate
degrees such as those of bachelor and master
36
have been abandoned in the universities of
continental Europe”.
39. Mere conferment of degree is not enough.
What is necessary is that the degree should be
recognized. It is for this purpose that the right
to confer degree has been given under Section 22
of the Act only to a University established or
incorporated by or under a Central Act, Provincial
Act or State Act or an institution deemed to be a
university under Section 3 or an institution
specially empowered by an Act of Parliament to
confer or grant degrees. Sub- Section (3) of this
section provides that “degree” means any such
degree as may, with the previous approval of the
Central Government, be specified in this behalf by
the Commission by notification in the Official
Gazette. The value and importance of such
degrees which are recognized by the Government
was pointed out by a Constitution Bench in S.
Azeez Basha v. Union of India.
49. The whole scheme of the impugned Act,
especially the effect of Sections 4, 5, 6 thereof
and the result which it has led to in notifying as
many as 1 1 2 universities within a short span of
one year on the basis of proposals made on paper
with many or most of them having almost zero
37
infrastructural facilities clearly shows that the
relevant provisions of the Act have completely
stultified the power of Parliament under Entry 66
to make provision for coordination and
determination of standards in institutions for
higher education like universities, the provisions of
the UGC Act and also the functioning of the
University Grants Commission. Sections 5 and 6 of
the impugned Act are, therefore, wholly ultra
vires the Constitution and are liable to be struck
down.
18. In Annamalai University (Supra), the Apex Court was
concerned with the provisions of the IGNOU Act, 1985 and the
UGC Act, 1956 and their interrelation. It was held that the
regulations framed by UGC to determine standard of education,
became part of the UGC Act and that the same are applicable
to both open universities as well as conventional formal
universities. It was further held that the Distance Education
Council of IGNOU although an authority under Statue 28 of
IGNOU Act, could not validate the same by granting its
approval, much less with retrospective effect. In paragraphs
40, 41, 42, 55 and 60, it has been observed thus:-
“40. The UGC Act was enacted by Parliament in
exercise of its power under Entry 66 of List I of
the Seventh Schedule to the Constitution of India
whereas the Open University Act was enacted by
38
Parliament in exercise of its power under Entry 25
of List III thereof. The question of repugnancy
of the provisions of the said two Acts, therefore,
does not arise. It is true that the Statement of
Objects and Reasons of the Open University Acts
shows that the formal system of education had
not been able to provide an effective means to
equalize educational opportunities. The system is
rigid inter alia in respect of attendance in
classrooms. Combinations of subjects are also
inflexible.
41 . Was the alternative system envisaged under
the Open University Act in substitution of the
formal system, is the question. In our opinion, in
the matter of ensuring the standard of education,
it is not. The distinction between a formal system
and an informal system is in the mode and manner
in which education is imparted. The UGC Act was
enacted for effectuating coordination and
determination of standards in universities. The
purport and object for which it was enacted must
be given full effect.
42. The provisions of the Act are binding on all
universities whether conventional or open. Its
powers are very broad. The Regulations framed by
it in terms of clauses (e), (f), and (h) of sub-
39
section (1 ) of Section 26 are of wide amplitude.
They apply equally to open universities as also to
formal conventional universities. In the matter of
higher education, it is necessary to maintain
minimum standards of instructions. Such minimum
standards of instructions are required to be
defined by UGC. The standards and the
coordination of work or facilities in universities
must be maintained and for that purpose required
to be regulated. The powers of UGC under
Sections 26(1 )(f) and 26(1 )(g) are very broad in
nature. Subordinate legislation as is well known
when validly made becomes part of the Act. We
have noticed hereinbefore that the functions of
UGC are all- pervasive in respect of the matters
specified in clause (d) of sub- section (1 ) of
Section 1 2- A and clauses (a) and )c) of sub-
section (2) thereof. ”
19. In Union of India and another –vs Kartick Chandra
Mondal and another (Supra), the Apex Court held that one
illegality cannot give rise to another illegality and for that
matter an illegality cannot be perpetuate projecting
discrimination.
20. In Kurmanchal Institute of Degree & Diploma and
others (Supra), submitted to be an identical case with the
present one, the Apex Court dealing with Distance Education
40
Programme and Operation of Study Centers, held that the same
can be conducted by the University only within its territorial
area. In the said case, the particular Study Centre of the
appellant was situated in Nainital, beyond the territorial
jurisdiction of the respondent university. It was held that such
Study Centers cannot be permitted to operate beyond the
territorial jurisdiction of the university.
21. In Mukta Ram Deka and ors (Supra) this Court has
held that B.Ed Degree obtained from the unrecognized
institution is not legally valid. The said Degree was pressed into
service for continuation in the higher post.
22. The case Government of India –vs- SRM University
(Supra) has been relied upon to submit that the decision on
which the learned Additional Advocate General, Assam has
placed reliance is clearly distinguishable in the given facts and
circumstances of the case in hand.
23. The case National Council for Teacher Education and
another (Supra), has been pressed into service to emphasis
that there cannot be any deviation in the matter of imparting a
course violating the norms and regulations.
24. Coming to the case in hand, the issue to be dealt with
is, whether the Bsc(IT) Degree obtained by the petitioners
from the Kuvempu University and Sikkim Manipal University are
recognized or not. None having appeared on behalf of the
Sikkim Manipal University in this proceeding, hence, their stand
in the matter is not discernible. However, it is the stand of the
41
Kuvempu University that the BSc(IT) Degree conferred by it
through NIIT, is legally valid at least up to 2012 being
recognized and approved by the UGC. It is their categorical
stand that ever since the UGC has permitted and approved 31
programmes, vide letter dated 27.08.2012, which did not
include the BSc(IT) Programme and clarified that the
recognition of the said course through Distance Education
Mode would be valid till then, the petitioners having obtained
the Degree in 2012, the same is valid in the eye of law.
25. Section 55 of the Karnataka State University Act,
2000, providing for jurisdiction, admission to privileges etc lays
down that the Act shall be exercised in the University Area
and no Educational Institution beyond the said area shall be
associated with or admitted to any privileges of the university.
However, the said provision is subject to the proviso that the
benefit of Correspondence Course or External Degree Courses
may be extended by the University to the students outside the
University area.
26. By the above referred letter dated 27.08.2012, the
IGNOU authority providing the recognition to the Directorate
of Distance Education, Kuvempu University for offering
programmes through Distance Mode recognized for three
academic years from 2012-2013 to 2014-2015, 31 programmes
which did not include the BSc(IT), it was stipulated that the
institution shall offer only the said programmes through
Distance Mode, which are approved by the DEC. It was further
42
stipulated that the territorial jurisdiction for offering
programmes through Distance Mode would be as per the
decision of the Council taken in its 48 DEC meeting. As per the
said decision, territorial jurisdiction of State Universities
(both Government funded and private) will be as per their Acts
and statutes, but not beyond the boundaries of their
respective States.
27. The aforesaid communication was followed by the
communication dated 16.09.2013 addressed to the Kuvempu
University Authority by the Distance Education Bureau, UGC on
the subject of issue of recognition of BSc(IT); BSc(ITIM) and
MSc(IT) programmes offered by Kuvempu University through
Distance Mode in collaboration with NIIT. By the said
communication, it was conveyed that the erstwhile DEC has
accorded provisional institutional recognition to the University
in 2007-08 with respect to the programmes approved by the
statutory bodies of the university through Distance Mode. It
was further conveyed that the institutional recognition was
valid till such time programme wise recognition was to be
granted by the DEC after conducting inspection under the DEC
guidelines. By the said communication, it was clarified that the
recognition of the aforesaid three programmes offered by
Kuvempu University under Distance Education Mode during the
period of institutional recognition would be valid.
43
28. For a ready reference, the aforesaid communication
dated 16.09.2013 (Annexure-3 to the counter affidavit of
respondent No.11) is reproduced below:-
“To
The Director
Directorate of Distance Education
Kuvempu University
Shankaraghatta- 577451
Distt- Shimoga (Karnataka)
Subject: Issue of recognition of BSc (IT), BSc
(ITIM) and MSc(IT) programmes offered
by Kuvempu University Shimoga to distance
mode in collaboration with NIIT- regarding.
Sir,
The undersigned is directed to refer to your
letter date 1 1 . 09. 201 3 on the above subject
requesting for certain information from the UGC
with regard to certain courses run by the
University and state as under: -
2. Attention is invited to Notification F. No. 1 -
4/201 3 (CPP- II), dated 1 7th June 201 3 of
University grants Commission with regard to
transfer of regulatory functions of the Open and
Distance Learning (ODL) system from Indira
44
Gandhi National Open University (IGNOU) to UGC
(copy enclosed).
3. The erstwhile Distance Education Council (DEC)
had accorded provisional institutional recognition to
the University in 2007- 08 with respect to the
programmes approved by the statutory bodies of
the University through distance mode. This
institutional recognition was valid till such time
programme- wise recognition was to be granted by
the DEC after conducting inspection under the
DEC guidelines.
4. After conducting the inspection on 28th and
29th August, 201 1 , the recommendations of the
Expert Committee (which conducted the inspection)
were placed before the Tripartite Committee of
UGC- AICTE- DEC and subsequently before the
Distance Education Council which approved 31
programmes. The decision was communicated to
the University vide letter No.
DEC/KU/SHMG/KTK/09/II/1 41 98- 1 4200 dated
27. 08. 201 2. The list of programmes included
therein did not include the programmes referred
to your aforementioned letter i. e. BSc (IT), BSc
(ITIM) and MSc(IT).
5. In the light of the above, it is clarified that
the recognition of the 3 programmes mentioned
45
above offered by Kuvempu University in distance
education mode during the period of institutional
recognition leading to award of degrees would be
valid provided the programmes were approved by
the Statutory Bodies of the University and
offered within the territorial limits stipulated by
DEC, till the period the University received
programme- wise recognition by the erstwhile DEC.
Further, DEC has always maintained that
franchising of study centers is prohibited and this
has also been communicated to the University
from time to time.
Yours faithfully, (Vandana Varma)
Asst. Director Distance Education Bureau, UGC”.
(Emphasis added)
29. Prior to that, the IGNOU vide its letter dated
29.03.2010 (page 131 of the counter affidavit of respondent
No.10) informed the Kuvempu University Authority thus:-
“Prof. Manjulika Srivastava Director Notification Sub: Territorial Jurisdiction in offering
programmes through distance mode- reg.
The Council in its 28th meeting held on 23rd
March, 2007, had decided that jurisdiction for
46
offering programmes through distance mode will
be as per the Acts and Statues of the concerned
university. However, in the ninth Joint
Committee meeting of UGC- AICTE & DEC held on
1 7. 08. 2009, regarding territorial jurisdiction for
offering programmes through distance mode, it
was decided that the latest UGC notifications
will prevail over all previous notifications and
circulars of the DEC.
On the requests received from various
institutions offering programmes through distance
mode requesting DEC to reconsider its decision on
territorial jurisdiction the matter was referred to
the Council for its consideration. In its 35th
meeting the Council noted that distance education
and online education cannot have the Territorial
Jurisdiction. Further, it was decided that in case
of Central Universities and the State Universities,
the Territorial Jurisdiction will be as per their
Acts and Statues for offering programmes through
distance mode. The Territorial Jurisdiction in case
of deemed universities will be as per UGC, which
mandates the prior approval of the UGC for
opening Centers/ off campus centers outside the
Headquarters. The Territorial Jurisdiction in case
of Private Institutions (other than Universities)
will be as decided by the Joint Committee.
47
This is issued with the approval of the
Chairman, DEC.
Yours sincerely, (Manjulika Srivastava)
To
The Registrar Kuvempu University Jnana Sahyadri, Shankaraghatta, Shimoga- 577451 , Karnataka Copy to:
The Director, Directorate of Correspondence
Courses, Kuvempu University Jnana Sahyadri,
Shankaraghatta, Shimoga- 577451 , Karnataka.
30. Under Section 3 of the Karnatake State University
Act, 2000, it has been provided that the Universities
established under the Act, shall be deemed to have been
established with their territorial jurisdiction as provided
therein, which extends over the districts mentioned therein. It
is on the basis of this provision, it was argued by the State
Government and UGC that the Kuvempu University’s
Jurisdiction is operational within the aforesaid five districts
and not beyond the State of Karnataka. However, Section 5 of
the same Act dealing with the jurisdiction, admission to
privileges etc provides that the benefit of Correspondence
48
Course or External Degree Course may be extended by the
University to students outside the university area.
31. University Grants Commission (Establishment and
Maintenance of Standards in private universities)
Regulations, 2003 is primarily concerned with setting up of
private universities through State Acts. Under Clause-3 of the
said Regulation, each Private University shall be established by
a separate State Act and shall confirm to the relevant
provisions of the UGC Act, 1956. 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 centres. The
overall performance of the off campus centres and or the
Study Centres shall be monitored annually by the UGC and if
the functioning of the said centres remains unsatisfactory, the
private university shall be instructed by the UGC to close own
the said centres.
32. Under the said Regulation, off campus centre means a
centre of the private university established by it outside the
main campus (within or outside the State) operated and
maintained as its constituent unit having the universities
compliment of facilities, faculty and staffs. A Study Centre
means a centre established and maintained or recognized by
the university for the purpose of advising, counseling or for
rendering any other assistance required by the students used in
49
the context of Distance Education. Although, as per the UGC
Regulation of 2003, the off campus centres or study centres
shall be set up with the prior approval of the UGC and the
State Government, but the same is in respect of establishment
and recognition of private universities and no in case of State
Universities like that of Kuvempu University.
33. Let us now refer to some of the provisions of the
IGNOU Act, 1985. The said Act was enacted to establish and
incorporate an Open University at the national level for the
introduction and promotion of Open University and distance
education system in the educational pattern of the country and
for the coordination and determination of circumstances in
such system. Defining “Distance Education System” u/s 2 (E)
of the Act, provides that the same means the system of
imparting education through any means of communication such
as broadcasting, telecasting, correspondence courses, seminars,
contact programmes or the combination of any two or more of
such means. The objects of the University shall be to advance
and disseminate learning and knowledge by a diversity of means,
including the use of any communication technology. Section 5(2)
of the Act emphasis on the duty of the University to take all
such steps as it may deem fit for the promotion of the open
University and distance education systems. Authorities are as
incorporated in section 16 of the Act. Section 28 makes
provisions for DEC, which shall consists of the members as
indicated u/s 28(3), which includes a member of the UGC and
50
Secretary, UGC. Section 28(4), lays down the powers and
functions of DEC.
34. During the course of hearing of the writ petition, Mr.
Goswami, learned counsel representing the NIIT produced
documents pertaining to Distance Education Bureau, a Bureau of
UGC furnishing information relating to recognition accorded to
Universities/Institutions for offering programmes through
Distance Mode. In the list, the name of the Kuvempu
University appears at Serial No.71. In the said serial number,
while indicating the provisional recognition and continuation of
provisional recognition, the duration of recognition is indicated
as from 2007-2008 to 2007-2008 and 2008-2009 to 2011-
2012, respectively. As regards the Status of recognition, the
remark is “The Erstwhile DEC had given institutional
recognition to offer programmes through distance mode,
which are approved by its statutory bodies.” As regards the
duration of recognition from 2012-2013 to 2014-2015, in the
heading of status of recognition, there are programmes of
different subjects, which did not include BSc(IT).
35. It is in the above context, both Kuvempu University
and NIIT have emphasized that BSc(IT) was very much
recognized up to 2012. Under Section 26(3) of the UGC Act,
1956, the UGC is empowered to make regulations including the
power to give retrospective effect to the regulations or any of
them, but no retrospective effect shall be given to any
regulations so as to prejudicially affect the interest of any
51
person, to whom such regulation may be applicable. The Madras
High Court’s decision has been referred to in the context of
this provision. During the course of hearing of the writ petition,
Mr. Goswami, learned counsel representing the NIIT, produced
the UGC notification dated 17.06.2013, by which the UGC in
exercise of its powers conferred u/s 12 of the UGC Act, 1956
has adopted the guidelines of DEC on minimum requirements for
recognition of ODL institutions of the earlier DEC in the extent
statue 28 of IGNOU Act, 1985.
36. In the reply affidavit filed by the petitioners against
the affidavit in opposition of the respondent No.1, they have
enclosed the list of UGC recognized universities, in which the
Kuvempu University and Sikkim Manipal University are included
at Sl No.72 and 152. Along with the said affidavit, the
petitioners have also enclosed the Annexure-3 Documents
pertaining to recognition/approval of the Sikkim Manipal
University by the UGC. Along with the said affidavit, the
petitioners have also enclosed the Gazette notification dated
17.04.2006 of the Sikkim Government notifying the Sikkim
Manipal University of Health, Medical and Technological
Sciences (Amendment) Act, 2006. As per amended section 5
of the said Act, the university is authorized to offer its
academic programmes through Distance Education Mode and to
establish and collaborate with resource centres in various parts
of the Country and abroad. It also provides for establishing and
maintaining study centres/learning centres in various parts of
the Country and abroad for the purpose of offering academic
52
programmes through Distance Education Mode. Another
document annexed to the said reply affidavit is the letter
dated 24.05.2010 of the IGNOU addressed to the Directorate
of Distance Education, Sikkim Manipal University conveying the
resolution of the Distance Education Council dated 10.03.2010
to the effect that the Distance Education and Online Education
cannot have the territorial jurisdiction. By the said
communication, the Council ratified the decision taken by the
Chairman in accepting the compliance report and accorded
recognition for a period of three years w.e.f. 2009-2010 to
2011-2012.
37. Coming to the Annexure-1 OM Dated 01.02.2012
annexed to the counter affidavit of the respondent No.1, the
same is on the subject of guidelines to be followed for
obtaining of UGC qualifications in regard to M.Phil/P.Hd
qualifications only and pertains to promotion to the next higher
grade of Senior Grade/Selection Grade/Associate Professor
and Principal etc. The said OM is not specific in respect of the
issue in hand.
38. As regards the decision in Kurmanchal Institute of
Degree and Diploma and others (Supra), referred to by Mr.
D. Saikia, learned Additional Advocate General, Assam with the
argument that both the universities i.e. Kuvempu University and
Sikkim Manipal University cannot operate beyond their
territorial jurisdiction. The same will have to be considered in
reference to the statutes of the two universities in respect of
53
Distance Mode of Education. As referred to in the counter
affidavit filed by the respondent No.11, as per the provisions of
Section 5 of the Karnataka State Universities Act, 2000, the
benefit of the Distance Mode of Education is permissible and in
fact, the university has been offering the same by obtaining
the institutional recognition in 2007-2008, the BSc(IT),
M.Sc(IT) and B.Sc(ITIM) courses were approved by the
statutory bodies of the Kuvempu University and appropriate
statutes were also framed empowering the university to impart
the said course.
39. In the instant case, the petitioners were admitted to
BSc(IT) course in 2008-09 and on conclusion of the course in
2012, they appeared in the University examination and cleared
the same in 2012. The UGC itself by its aforesaid letter dated
16.09.2013 issued the clarification that the recognition of the
three programmes mentioned in the letter including that all
BSc(IT) offered by Kuvempu University in Distance Education
Mode during the period of institutional recognition leading to
award of Degrees would be valid provided that the programmes
were approved by the statutory bodies of the university and
offered within the territorial limits stipulated by DEC, till the
period the university received programme wise recognition by
the erstwhile DEC. Further by the above mentioned
communication dated 29.03.2010, IGNOU clarified the matter
to Kuvempu University regarding territorial jurisdiction in
offering programmes through Distance Mode that as per the
decision of the council, the Distance Education and online
54
Education cannot have the territorial jurisdiction and that in
case of Central Universities and State Universities, the
territorial jurisdiction will be as per their case and status for
offering programmes Through Distance Mode.
40. As noted above, as per the status of the Universities in
question, they are entitled to impart Distance Mode of
Education with no bound of any territorial jurisdiction. This
being the position and with the programme wise recognition of
Distance Mode of Education starting from 2012, where BSc(IT)
is not included, the respondent University is not entitled to
impart BSc(IT) programmes/course through Distance Mode of
Education, but certainly the Degrees obtained by the
petitioners prosecuting their studies from 2008-2009 to 2011-
2012 will have the recognition as a valid Degree. Consequently,
the public notice issued by the UGC cannot be held applicable to
the case of the petitioners.
41. This being the position, the impugned notification
which has also been issued without providing any opportunity of
being heard to the petitioners is also not sustainable in law.
However, I hasten to add that this position towards recognizing
the BSc(IT) Degree obtained by the petitioners is only up to
the stage of 2012 and not thereafter as the said course is not
included in the programme wise recognition offered by the
UGC.
42. Accordingly, the writ petition is allowed to the extent
indicated above by setting aside and quashing the impugned
55
notification dated 19.09.2013. Interim order operating in this
proceeding stands modified in terms of this final judgment and
order. Consequently, the petitioners will be entitled to get
their results declared. Be it stated here that although by the
impugned notification the petitioners’ admission to MCA Course
was cancelled, but they were allowed to appear in the
University examination by interim orders with the direction
that results thereof should not be declared till final decision in
the matter.
43. The writ petition is answered in the above manner. The
parties shall bear their own costs.
JUDGE
Alam
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