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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, , MIZORAM AND )

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, 2

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 , 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. Manipal University, represented by the Vice Chancellor, 5th mile, Tadong, Gangtok, 737102, Sikkim, .

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.

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9. The Kuvempu University, represented by the Vice Chancellor Jnana, Sahyadir, Shankaraghatta- 577451, Shimoga District, , 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

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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

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 6

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 11

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 ,

Dibrugarh 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 12

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. 15

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 16

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 ( –vs-

Secretary to Government, Information and Tourism

Department and Others); 30

(iv) (1 995) 1 SCC 745 ( 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 ( – 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