Cosmic Business School vs All India Council Of Technical ...
2008 Latest Caselaw 1190 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    W.P.(C) No. 5111/2008

%            Date of Decision : 30.07.2008


      COSMIC BUSINESS SCHOOL                 ..... Petitioner
                     Through Mr. Prashant Mendiratta, Adv.

                     versus


      ALL INDIA COUNCIL OF TECHNICAL
      EDUCATION & ORS.                       ..... Respondent
                     Through Mr. Nikhil Nayyar, Adv. for R-2
                              Mr. Amitesh Kumar for UGC
                              Mr. Jatan Singh for AICTE
                              Mr. Aly Mirza for Distant Education
                              Council/R-5
                              Mr. Shikha Palsule for R-3

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?            No

3. Whether the judgment should be                No
   reported in the Digest?

VIPIN SANGHI, J. (Oral)

W.P.(C) No. 5111/2008

Counsel for respondent Nos.2,3, 4 & 5 have put in appearance

and they seek time to file their counter affidavit. Let the same be

filed within four weeks. Rejoinder be filed before the next date.

List on 11.12.2008.

CM No. 9773/2008

1. On the last date counsel for respondent No.1 All India

Council of Technical Education (AICTE) had stated that till today the

respondent No.1 shall not give effect to the impugned order dated

9.3.2007. Today learned counsel for respondent No.1 has refused to

extend the undertaking given to the court on the last date and has

argued the matter on the aspect of grant of interim protection to

the petitioner against the threatened action in terms of the

impugned show cause notice of the respondent AICTE dated

9.3.2007 and the communication dated 30.6.2008. I have

accordingly heard arguments at some length addressed by the

counsel for the parties on the aspect of grant of interim protection

as prayed for by the petitioner.

2. Indira Gandhi National Open University Act (IGNOU Act)

has established IGNOU to encourage Distance Education System in

the country as well as to coordinate the standards of such

education. Distance Education Council (DEC) has been constituted

as a body under Section 25 of IGNOU Act to promote concept of

Open University as well as the Distance Education System, and for

its coordination and determination of Standards of teaching.

3. The petitioner company claims to be running a study

centre as defined under Regulation 2.4 of the UGC (Establishment

of And Maintenance of Standards in Private Universities)

Regulations, 2003, established and maintained by respondent No.2

University viz Sikkim Manipal University of Health, Medical &

Technological Sciences, which is a University constituted by the

State of Sikkim by Act IX of 1995. The petitioner has however, not

placed these Regulations of 2003 on record. Instead, what has been

annexed to the writ petition are the UGC (the minimum standards of

instructions for grant of the first degree through non

formal/distance education in the faculties of Arts, Humanities, Fine

Arts, Music, Social Sciences, Commerce and Sciences) Regulation,

1985 issued on 25.11.1985. Clause 3.2 of these Regulations of 1985

enables the Universities to set up study centres (outside the

headquarters) in areas where there is a reasonable concentration of

students. It also lays down the facilities that a study center should

provide.

4. The case of the petitioner is that IGNOU vide

communication dated 29.8.2007 granted provisional recognition to

programmes offered through distance education mode by the

respondent No.2 University. The petitioner has accordingly set up

a study centre of Respondent No.2 University in Delhi. The

application for renewal of the recognition for the academic year

2008-2009 made by respondent No.2 to DEC is still pending. It is

contended that AICTE has no role to play in the matter of courses

and programmes run by respondent No.2 under the Distance

Education Mode. This is the admitted position as is evident from the

letter dated 12.4.2007 issued by AICTE to the Director, National

Institute of Open Schooling. Reliance is also placed on the

communication dated 28.8.2001 of UGC addressed to respondent

No.2 which states that Universities are permitted to award degrees

through Distance Education at their own centers in different parts of

the country. Reliance is placed on the decision of the Supreme

Court in Bhartidasan University & Anr. vs. AICTE (2001) 8 SCC

676 which states that AICTE Act does not require a university to

obtain prior approval of AICTE for starting a department or unit as

an adjunct to the university itself to conduct technical education

courses of its choice. The regulations framed by AICTE which

required the Universities to obtain such approval were held to be

void. It is, therefore, argued that the AICTE has no jurisdiction

to take action against the petitioner as threatened in the impugned

show cause notice dated 9.3.2007 and the letter dated 30.6.2008.

5. Learned counsel for the UGC, Mr. Amitesh Kumar,

submits that after the Regulations of 1985, the UGC has framed the

UGC (Establishment of and Maintenance of Standards in Private

Universities) Regulations, 2003 which are applicable to private

Universities such as respondent No.2.

6. These regulations of 2003 have been considered by the

Supreme Court in Prof. Yashpal & Anr. vs. State of Chattisgarh

& Ors. AIR 2005 SC 2026. Regulation 3.3 of these Regulations

puts restriction on establishment of a University outside the State

by any state. The same reads:

"3.3 A private university established under a State Act shall operate ordinarily within the boundary of the State concerned. However, after the development of main campus, in exceptional circumstances, the university may be permitted to open off-campus centres, off- shores campuses and study centres after five years of its coming into existence, subject to the following conditions........"

7. He submits that the UGC has not granted any

permission to respondent No.2 to open its study centres outside the

State of Sikkim. Respondent No.2, Sikkim Manipal University of

Health, Medical & Technological Sciences, Gangtok, Sikkim could

not have extended its arms/activities beyond the State of Sikkim by

setting up its study centres outside the State of Sikkim. In this

regard reference may also be made to the observations of the

Supreme Court in the aforesaid decision in paragraph 41. The same

reads as follows:

"41. Dr. Dhawan has also drawn the attention of the Court to certain other provisions of the Act which have effect outside the State of Chhattisgarh and thereby give the State enactment an extra territorial operation. Section 2(f) of the amended Act defines 'off-campus center' which means a center of the University established by it outside the main campus (within or outside the State) operated and maintained as its constituent unit having the university's complement of facilities, faculty and staff. Section 2(g) defines "off- shore campus" and it means a campus of the university established by it outside the country, operated and maintained as its constituent unit, having the university's complement of facilities, faculty and staff. Section 3(7) says that the object of the University shall be to establish main campus in Chhattisgarh and to have the study centers at different places in India and other countries. In view of Article 245(1) of the Constitution, Parliament alone is competent to make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. The impugned Act which specifically makes a provision enabling a University to have an off-campus center outside the State is clearly beyond the legislative competence of the Chhattisgarh legislature."

8. Therefore, respondent No.2 University, which is a

University constituted under a State Law passed by the legislature

of the State of Sikkim, prima facie, cannot have extra territorial

authority, i.e. it cannot run, manage or supervise study centers

outside the State of Sikkim. Following the decision in Prof. Yashpal

(supra) the Supreme Court, in Rai University vs. State of

Chattisgarh & Ors., 2005(5)SLR 838 has clarified that "institutions

of the erstwhile private Universities, if otherwise eligible, may apply

and seek affiliation with any other University which has jurisdiction

over the area where the institution is functioning and is empowered

under the relevant Rules and Regulations and other provisions of

law applicable to the said University to grant affiliation."

9. Mr. Jatan Singh, learned counsel for AICTE has also

drawn my attention to a Memorandum of Understanding dated

10.5.2007 entered into between the UGC, AICTE and Distant

Education Council (DEC). Under this MOU the aforesaid bodies have

constituted a Joint Committee known as "UGC-AICTE-DEC Joint

Committee for Technical and General Education in Distance Mode".

The purpose of entering into the MOU is stated to be to ensure the

quality of technical and general education offered through distance

and mixed mode. UGC and AICTE have agreed to utilize the

expertise and involvement of DEC in functions such as review of

the programmes & courses, curricula, norms and standards of

approval of new courses and institutions, periodic review of the

institutions/programmes, coordination of inspection and approval

activities. The approval to the programmes run by a University

through distance education are required, under this MOU, to be

jointly issued by all the constituents of the said Committee.

10. My attention has also been drawn to the DEC guidelines

for regulating the Establishment and Operation of Open and

Distance Learning (ODL) Institutions in India issued by DEC. The

Preamble to these guidelines clearly sets out the mischief that is

sought to be remedied by these guidelines. The relevant portion of

the Preamble states:

"Of late, it has been seen that there is indiscriminate proliferation of Open and Distance Learning (ODL) Institutions In India. Even single-mode conventional universities are becoming dual mode to offer programmes in the distance mode. This has happened due to the fact that the formal system of face-to-face instruction has failed to cope up with the educational requirements of the ever-increasing number of aspiring students after plus two stage. At present more than 20% students of higher education in the Country are enrolled in the ODL system. What is disturbing to note is that distance mode has become purely commercial venture with little or no attention being paid to the quality of education offered to the learners. Many Universities awarding sub-standard certificate/diploma/degree programmes are not adhering to even the guidelines issued by the concerned regulatory bodies. In order to safeguard the interest of the students in India and to ensure the quality of education, the DEC has framed Guidelines, 2006 for regulating the establishment and operation of Open and Distance Learning (ODL) Institutions in India."

11. These guidelines clearly provide that the parent

institutions shall not establish their study centers/regional centers

outside their jurisdiction as specified in the parent institutions Act/

MOA. In case of "deemed to be university" offering distance

education programmes, the same will be confined to the state in

which the main campus of the parent institution is located, except

for programmes that are culturally and linguistically relevant even

outside their state. The guidelines further provide that explicit

approval of DEC should be obtained for offering such programmes

(Guideline 3.3).

12. Guideline 9.2 of these guidelines further states that the

Study Centres shall be opened only in affiliated and constituent

colleges, and in such other academic institutions which the parent

institution may deem fit. The Study Centre should be located only

within the jurisdiction of the parent institution after signing MOU. In

case of deemed to be university the study centres should be only in

the state where its Headquarter is located.

13. As aforesaid, IGNOU granted only provisional

recognition for the academic session 2007-2008 vide

communication dated 29.8.2007 addressed to respondent No.2

University for offering programmes through distance modes. This

communication further stated that "for recognition of your

institution for offering programmes through distance mode from

the next academic year, i.e., from June-July, 2008, you are

requested to submit fresh application in the prescribed format

developed by DEC."

14. The petitioner is running the study centre of respondent

No.2 University at Delhi. In the face of the aforesaid decisions of

the Surpeme Court in Prof Yashpal & Anr. (supra) and Rai

University (supra), as also keeping in view the guidelines framed

by DEC and the Regulations framed by the UGC in 2003 which have

also been taken note of in the judgment of the Supreme Court in

Prof Yashpal & Anr. (supra), it appears that running of the study

centre by the petitioner at Delhi is prima facie impermissible. The

petitioner ought to have disclosed in the writ petition the DEC

guidelines and the UGC guidelines of 2003, which have

unfortunately been withheld.

15. The submission of the petitioner that the AICTE is not

entitled to take coercive action against the petitioner since the

AICTE has no jurisdiction over respondent No.2 University in view of

the decision of the Supreme Court in Bhartidasan (supra) does not

appear to be tenable. This is so because, prima facie, the petitioner

cannot run a study center, as a study centre of respondent No.2

University outside the State of Sikkim. Since the umbilical chord

connecting the petitioner to respondent No.2 cannot be sustained,

the petitioner cannot seek umbrage under respondent No.2 to

sustain its activities or to seek protection against action that

respondent AICTE may initiate. Admittedly, the petitioner is

running the center to impart education in courses of management

which comes within the realm of AICTE. Therefore, it appears that

AICTE would have jurisdiction to proceed against the petitioner.

AICTE has not proposed to take action against respondent No.2

University. The decision in Bhartidasan (supra) is, therefore, not

applicable.

16. Various other submissions have been made by the

parties. However, at this stage I do not consider it necessary to

deal with all of them. Since, prima facie, the petitioner is not

entitled to run the study center, the application is dismissed.

                                                 VIPIN SANGHI,J
JULY    30, 2008
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