B. Mahesh Sharma vs Union Of India & Ors.
2014 Latest Caselaw 4855 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of decision: 26th September, 2014.
+                               W.P.(C) 5937/2010
       B. MAHESH SHARMA                          ...... Petitioner
                Through: Mr. A.J. Bhambhani, Sr. Adv. with Mr.
                         Zishan Sikandri, Adv.
                                Versus
       UNION OF INDIA & ORS.                        ..... Respondents
                 Through: Ms. Anjana Gosain Adv. for R-1/UOI.
                          Mr. Arjun Harkauli, Adv. for R-2/UGC.
                          Ms. Mamta Tiwari, Adv. for Mr. Amitesh
                          Kumar, Adv. for R-3 AICTE
                          Mr. Rakesh Tikku, Sr. Adv. Mr. Amit
                          Sharma, Mr. Arunabh Choudhary, Mr.
                          Gursharan Singh, Mr. Praveen Nagar, Mr.
                          Sumit, Mr. Aditya Bhardwaj and Mr.
                          Pranjay, Advs. for R-4/IIPM.
                          Mr. Arunav Patnaik with Mr. Yojit Singh,
                          Advs. for R-5.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition, filed as a Public Interest Litigation (PIL), flags the

issue, of the respondents No.1 to 3 i.e. Union of India (UOI), the University

Grants Commission (UGC) and the All India Council for Technical

Education (AICTE) having not taken any action and having thereby allowed

the respondent No.4 Indian Institute of Planning and Management (IIPM)

through its Dean Mr. Arindam Chaudhuri to fraudulently use "MBA / BBA"

in relation to the Courses offered by it, thereby misleading, cheating and

exploiting students attracted to the said Institute under the belief that they

will acquire the qualification of MBA / BBA. Manonmaniam Sundaranar

University (M.S. University), Tamil Nadu which had franchised its MBA

programme to the respondent No.4 IIPM, allegedly in violation of the norms

of the respondent UGC and the principles laid down in Prof. Yashpal Vs.

State of Chhattisgarh (2005) 5 SCC 420, is impleaded as respondent No.5

and the various foreign Universities and the Institutions whose names the

respondent No.4 IIPM was using in its advertisements, allegedly to lure the

students, are impleaded as respondents No.6 to 11. The following reliefs

have been claimed in the petition:

"a) Issue a writ of, or in the nature of, mandamus and/or any other appropriate writ, direction or Order in public interest directing Respondents Nos. 1, 2 and/or 3 to frame appropriate norms and guidelines to ensure that no private educational Institution uses the terms "MBA", "BBA" or any other similar term/s that refer to, or are associated with, recognized Degrees in higher education, whether in management, medicine or engineering etc., in relation to the Courses offered unless such educational Institution is a recognized university or deemed university or accredited to a recognized university;

b) Issue a writ of, or in the nature of, mandamus and/or any other appropriate writ, direction or Order directing Respondents Nos. 1, 2 and /or 3 to frame appropriate norms and guidelines to ensure that foreign universities do not "lend" their names to private higher educational Institutions in India without prior approval of Respondents Nos. 1, 2

and/or 3, the objective being to prevent private higher educational Institutions in India from exploiting students without having requisite infrastructure, facilities, standards or involvement of such foreign universities in providing such education;

c) Issue a writ of, or in the nature of, mandamus and/or any other appropriate writ, direction or Order directing Respondents Nos. 1, 2 and/or 3 to order stoppage of all programmes other than those that are permissible in law, especially "distance learning" programmes; and to frame policies that clearly lay-down rules of design, approval, delivery and quality assurance of all academic programmes offered by any State Institutions; and frame policies that explicitly prevent State universities from entering into franchising of higher education;

d) In the alternative, this Hon'ble Court may itself frame appropriate norms and guidelines as aforesaid to achieve the salutary purposes stated in prayer (a), (b) and (c) above;

e) Direct Respondent No. 2 and/or other appropriate body/organization of the Government of India to conduct a thorough, comprehensive enquiry / investigation into the affairs of Respondent No.4 institute as highlighted in the present petition;"

2. The petition was entertained and ordered to be taken up for hearing

along with certain writ petitions filed by the respondent No.4 IIPM against

the respondents UGC and AICTE. Vide order dated 27th January, 2011,

Indira Gandhi National Open University (IGNOU) was also impleaded as a

respondent to the petition. The other petitions along with which this petition

was being taken up for hearing were however disposed of inter alia in the

light of the judgment of the Supreme Court in Association of Management

of Private Colleges Vs. All India Council for Technical Education

(2013) 8 SCC 271 holding that MBA is not a technical course within the

definition of All India Council for Technical Education Act, 1987 (AICTE

Act) and AICTE does not have jurisdiction concerning the same. The order

dated 2nd December, 2013 in this writ petition records that the respondent

UGC vide its order dated 19th November, 2013 had found the advertisement

issued by the respondent No.4 IIPM to be having the potential to mislead the

students and public at large and having taken a decision that the respondent

No.4 IIPM should forthwith stop the practice of issuing such dubious

advertisements to attract students deceptively; faced therewith, the counsel

for the respondent No.4 IIPM stated that till IIPM takes recourse against the

said order of the UGC, it shall not print / publish / insert / issue / place any

advertisement either in any newspaper, journal or Television or website

without the prior approval of this Court. This Court in the order dated 2 nd

December, 2013 recorded the said statement of the counsel and accepted the

same and ordered the respondent No.4 IIPM to be bound thereby.

3. We may also notice another subsequent development. Vide

Notification dated 4th May, 2013 of IGNOU, Statute XXVIII of IGNOU

establishing the Distance Education Council was repealed and IGNOU thus

seized to be concerned with distance education which has since been taken

over by the respondent UGC.

4. The respondent UGC in its counter affidavit filed in October, 2010 to

the petition has inter alia stated:

(i) that the respondent No.4 IIPM is neither a University within the

meaning of Section 2(f) of the University Grants Commission Act,

1956 (UGC Act) nor is it a Deemed University declared by the

Central Government under Section 3 of the said Act;

(ii) that the respondent No.4 IIPM is not entitled to confer, or grant,

or hold itself out as entitled to confer or grant any Degree;

(iii) that the respondent No.4 IIPM however in the advertisements

being published by it was using the nomenclature of Degree

(as defined in Section 22 of the UGC Act) such as BBA Degree and

MBA Degree in relation to its Courses / programmes and misleading

the students and public at large;

(iv) that UGC had issued a show cause notice dated 17th October,

2007 under Section 24 of the UGC Act to the respondent No.4 IIPM,

as to why action should not be initiated against it;

(v) that the respondent No.4 IIPM in its reply dated 14th February,

2008 thereto, informed that it does not award any Degree and is

conducting a course which is non-technical and non-professional

Certificate Programme in National Economic Planning and

Entrepreneurship and though does not have any collaboration with

International Management Institute (IMI), Belgium but the said

Institute awards its Degrees to IIPM students in recognition of the

Course undertaken by them at IIPM;

(vi) that UGC had included the name of the respondent No.4 IIPM

in the list of fake Universities, posted and maintained by the UGC on

its website with the objective of informing the students and public at

large of the status of the IIPM;

(vii) however pursuant to order dated 27th June, 2008 in W.P.(C)

No.4567/2008, UGC removed the name of the respondent No.4 IIPM

from the list of fake Universities and issued advertisements informing

students / public at large in terms of the said order;

(viii) that the respondent No.5 M.S. University, Tamil Nadu is a

State University and could not have approved the respondent No.4

IIPM as an onside academic partner Institution to confer MBA, BBA

and BCA Degrees;

(ix) that in accordance with the judgment in Prof. Yashpal (supra)

also, the State Universities or the Private Universities established by

the State Governments are not entitled to establish or open off-campus

study centres or to create franchises in the name of Distant Education

Programme outside the State.

5. Though counter affidavits have also been filed by other respondents

including the respondent No.4 IIPM and rejoinder to some of them have also

been filed, besides by the petitioner also by the respondent No.4 IIPM but in

the light of what is recorded herein below, the need to refer thereto does not

arise.

6. When this petition was taken up for hearing on 16th September, 2014,

the counsel for the respondent AICTE placed before us, copies of the orders

dated 17th April, 2014 and 9th May, 2014 in SLP(C) No.7277/2014 titled

Orissa Technical Colleges Association Vs. All India Council for Technical

Education & Anr. and which are as under:

"17/04/2014 Upon hearing counsel the Court made the following order. In the counter affidavit filed on behalf of respondent No. 1, i.e., All India Council for Technical Education (AICTE), it is stated that Approval Process Handbook (2013-14) is presently in force and the same has been extended and made applicable for the Academic Year 2014-15 as well.

AICTE shall now proceed in accordance with the Approval Process Handbook for the Academic Year 2014-15 insofar as the members of the petitioner Association and all colleges and Institutions situated similarly to the members of the petitioner Association are concerned and necessary orders shall be issued by AICTE within ten days.

Prayer for interim relief is ordered accordingly.

09/05/2014 UPON hearing counsel the Court made the following order. I.A. Nos. 2 & 3 of 2014:

The order dated 17.4.2014 passed by this Court is clarified and it is directed that prior approval of All India Council for Technical Education (AICTE) is compulsory and mandatory for conduct of a technical course including the MBA/Management Course by an existing affiliated Technical College and also new Technical College which will require affiliation by a University for conduct of its Technical Courses/Programmes for the academic year 2014-15. The time given in the order dated 17.4.2014 is extended by 10.6.2014.

I.A. Nos. 2 & 3 of 2014 stand disposed of as above. I.A. Nos. 1, 4 and 5 of 2014:

Mr. Bijan Kumar Ghosh, learned counsel for the applicants seeks withdrawal of I.A. Nos. 1, 4 and 5 of 2014. I.A. Nos. 1, 4 and 5 of 2014 are disposed of as withdrawn."

On the basis thereof, the counsel for the respondent AICTE contended

that in accordance therewith, prior approval of AICTE is compulsory and

mandatory for conduct of a technical course including the MBA /

Management Course and the respondent No.4 IIPM having not obtained the

approval of the respondent AICTE, is not entitled to conduct MBA /

Management Course or to claim to be doing so.

7. On request of the senior counsel for the respondent No.4 IIPM

appearing on 16th September, 2014, the hearing was adjourned to 18 th

September, 2014.

8. The senior counsel appearing for the respondent No.4 IIPM on 18 th

September, 2014 stated:

(a) that the affiliation of the respondent No.4 IIPM with M.S.

University has come to an end;

(b) that the respondent No.4 IIPM is now running only certain

Courses;

(c) that the respondent No.4 IIPM is not recognized by any

statutory body / authority whatsoever, and;

(d) that the respondent No.4 IIPM is not entitled to and does not

confer any Degree.

With respect to the orders supra of the Supreme Court in Orissa

Technical Colleges Association, the senior counsel for the respondent

No.4 IIPM stated that the same are not applicable to the respondent

No.4 IIPM since the respondent No.4 IIPM is not an affiliated

Technical College and is not affiliated to any University and is not

conducting any Technical Courses/Programmes.

9. The counsel for the respondent AICTE also handed over the minutes

of the meeting held on 10th April, 2013 of the Hearing Committee

constituted by the AICTE in the matter of removing the name of the

respondent No.4 IIPM from the list of unapproved Institutions posted and

maintained on the AICTE website. The Hearing Committee concluded that

the justification / clarification submitted by the respondent No.4 IIPM was

not acceptable as the programmes / activities being run by the respondent

No.4 IIPM are clearly an attempt to offer MBA Programmes by bypassing

the statutory requirement of seeking prior approval of AICTE stipulated

under the AICTE Act and accordingly recommended AICTE to continue

displaying IIPM‟s name in the list of unapproved Institutions displayed on

the AICTE website. It was also informed that the said recommendation was

accepted by AICTE and IIPM informed thereof vide letter dated 26 th April,

2013.

10. Per contra, the senior counsel for the petitioner contended that the

respondent No.4 IIPM is also in violation of the statement made before this

Court on 2nd December, 2013 and by which it was ordered to be bound. It is

stated that though it was stated before this Court that the respondent No.4

IIPM shall not print / publish / insert / issue / place any advertisement either

in any newspaper, journal or Television or website without the prior

approval of the Court but the respondent No.4 IIPM on its website continues

to display advertisements including for admissions for the year 2014.

Snapshots of such advertisements downloaded from the website of the

respondent No.4 IIPM were handed over in the Court and which show the

respondent No.4 IIPM having advertised for admission to "open MBA /

(BBA + MBA - Integrated)" programmes for the year 2014 and having also

represented that the same will lead to "UG/PG Courses IMI, Brussels". The

senior counsel for the petitioner has also drawn our attention to the

Prospectus published by the respondent No.4 IIPM and copy of which has

been filed along with the writ petition, wherein the respondent No.4 IIPM

had represented that the undergraduate programmes undertaken with it

resulted in the award of Degree in B.Sc. in management. It is contended

that though the senior counsel for the respondent No.4 IIPM today has

acknowledged that the respondent No.4 IIPM was/is not entitled to confer

Degree in management but was misrepresenting to the students. It is further

contended that in accordance with the statements made by the senior counsel

for the respondent No.4 IIPM today, the respondent No.4 IIPM is clearly a

non-professional, non-technical Institution and nothing more than a private

teaching (PT) Institution like several other PT Schools/Colleges operating in

the country. It is yet further contended that the use by the respondent No.4

IIPM of the nomenclature „Business School‟ or „B- School‟ as used by other

approved Institutions imparting education in BBA/MBA courses is also

deceptive and misleads the students. Lastly, it is contended that though the

respondent No.4 IIPM before this Court stated (as recorded in the order

dated 27th June, 2008 in WP(C) No.4567/2008 (supra) filed by IIPM) that it

is not having any affiliation with IMI, Belgium but its advertisements

misleadingly convey otherwise. It is yet further informed that IMI, Belgium

is not even recognized as per the law of Belgium.

11. The senior counsel for the respondent No.4 IIPM in rejoinder

contended that the present petition is not entitled to be entertained as a PIL,

as the petitioner has a history of long standing disputes with the respondent

No.4 IIPM and particulars of which have been mentioned in its counter

affidavit. It is thus contended that the petition is by way of personal

vendetta, rather than being in public interest.

12. We have considered the rival contentions.

13. We may at the outset state that, i) this petition having remained

pending for nearly four years; and, ii) being concerned with the subject of,

imparting of education being converted into a teaching shop/business and of

misleading gullible students who, owing to the number of recognized

educational Institutions in the country having not kept pace with the

growing population, are compelled to waive caution and in an attempt to

attain qualification, allow themselves to be misled; and, iii) in the light of

subsequent events and the material which has come before this Court, we do

not deem it appropriate to go into the question of the petition being

motivated by private instead of public interest. Even if that were to be so,

the issue having been brought to the attention of this Court, we are inclined

to, on our own, take up / pursue the same.

14. A visit by us on 25th September, 2014 to the website www.timi.edu of

International Management Institute, Brussels, Belgium has also disclosed

the same to be nothing different from "The Global initiative of Asia‟s

leading business school - IIPM" and having been set up by the same

Mr. Arindam Chaudhuri and his father Dr. Malay Chaudhuri. The

respondent No.4 IIPM on the other hand, in its advertisements, is portraying

as if it has recognition , if not in India from UGC or AICTE, from a foreign

Management Institute namely IMI, Belgium and which advertisements have

the potential of misguiding young minds who have a craze for „foreign

education‟ in the hope it will open doors for international

placements/employments and cleverly concealing from them that IMI,

Belgium is nothing but an alter ego or another face of IIPM. A visit to the

website www.iipm.in/institutions on 25th September, 2014 disclosed the

following inscription:-

In our opinion, the aforesaid is clearly a maze created by the respondent

No.4 IIPM to entrap students to enlist with it in the hope of acquiring a

qualification which the respondent No.4 IIPM is not entitled to confer and

thereby enriching the respondent No.4 IIPM to a considerable extent as is

evident from the huge expenditure earlier as well as now being incurred by

the respondent No.4 IIPM in publicity in print and electronic media.

15. The respondent No.4 IIPM and its Dean Mr. Arindam Chaudhuri are

undoubtedly also in violation of the statements given to this Court on 2 nd

December, 2013 and with which they were ordered to be bound. The senior

counsel for the respondent No.4 IIPM in fact had no reply also to the

snapshots from the website of IIPM shown to us during the hearing and

which are in violation of the said statement, as recorded in the order dated

2nd December, 2013. Neither could the senior counsel for the respondent

No.4 IIPM deny that the same were from the website of IIPM nor could

inform of any order by which IIPM may have been released from the said

statement. The respondent No.4 IIPM, its concerned officials including its

Dean Mr. Arindam Chaudhuri are accordingly liable to be proceeded against

and punished for such breach of statements in the nature of undertaking

given to this Court. However, considering that the said statement is of 2 nd

December, 2013 and admission only for the year 2014 would be taking

place / would have taken place thereafter, we take a lenient view of the

matter and,

"DIRECT THE RESPONDENT NO.4 IIPM AND ITS RESPONSIBLE OFFICIALS

INCLUDING ITS DEAN MR. ARINDAM CHAUDHURI TO FORTHWITH REMOVE

THE SAID ADVERTISEMENTS FROM THEIR WEBSITE AND TO COMPLY IN

LETTER AND SPIRIT WITH THE SAID STATEMENT GIVEN AND RECORDED IN

THE ORDER DATED 2ND DECEMBER, 2013. THE RESPONDENT NO.4 IIPM AND ITS

RESPONSIBLE OFFICIALS INCLUDING ITS DEAN MR. ARINDAM CHAUDHURI TO

ALSO WITHIN ONE WEEK HEREOF, DISPLAY ON THEIR WEBSITE AN APOLOGY

FOR HAVING SO VIOLATED THE STATEMENT IN THE NATURE OF

UNDERTAKING GIVEN TO THE COURT.

16. We however clarify that our having taken a lenient view would not

relieve the respondent No.4 IIPM or its officials or Dean Mr. Arindam

Chaudhuri from any action which may be taken by any other person who

may have been lured by the advertisements made in violation of the

statement given to the Court on 2nd December, 2013.

17. We are unable to accept the contentions of the senior counsel for the

respondent No.4 IIPM that the orders dated 17 th April, 2014 and 9th May,

2014 of the Supreme Court in Orissa Technical Colleges Association

(supra) are not applicable to the respondent No.4 IIPM. What the Supreme

Court has prohibited to be done, cannot be permitted to be done indirectly.

Once the Supreme Court has ordered that prior approval of AICTE is

compulsory and mandatory for conduct of a Technical Course including the

MBA / Management course, by an existing affiliated Technical College and

also new Technical College which will require affiliation by a University for

conduct of its Technical Courses / Programmes, it is not open to the

respondent No.4 IIPM to contend that since it is not a Technical College, it

is entitled to so run MBA / Management course without prior approval of

the AICTE. The purport of the order is that no Institution should run MBA /

Management course, without the approval of the AICTE. The respondent

No.4 IIPM is clearly advertising / running MBA and BBA Courses. The

BBA course shall also fall in the category of management course which has

been prohibited. The respondent No.4 IIPM admittedly does not have the

AICTE approval. It is thus not entitled to run a BBA / MBA course or to

advertise itself as conducting any course/programme in Management or to

advertise itself as a Management School or a Business School or a B-

School. We order accordingly.

18. In the face of the admission of the senior counsel for the respondent

No.4 IIPM today that the respondent No.4 IIPM is not entitled to confer any

Degree, the prospectus issued by the respondent No.4 IIPM showing itself

as conferring a Degree, is evidently false and misleading. The respondent

No.4 IIPM is not entitled to represent so in any manner directly or

indirectly. Further in view of the admission that the respondent No.4 IIPM

is not recognized by any statutory body / authority, the respondent No.4

IIPM also is not entitled to directly or indirectly in any manner convey that

it is so recognized. Similarly, with respect to foreign Degrees / Institutions

also, the respondent No.4 IIPM is required to make a clean breast of the

status and to vividly and clearly inform its prospective customers / clients /

students thereof, including the status of the said foreign Institutions and/or

its Degree or Certificate in the country of its origin and/or to which it

belongs.

19. We accordingly dispose of this petition, besides the aforesaid

directions in paras No.15,17 and 18, with the following directions:

(A) The respondent No.4 IIPM and its management / officials

including its Dean Mr. Arindam Chaudhuri are restrained with

immediate effect from using the word "MBA, BBA, Management

Course, Management School, Business School or B-School" in

relation to the Courses / programmes being conducted by them or in

relation to the representations if any made to the public at large and/or

to their prospective clients, customers or students;

(B) The respondent No.4 IIPM and its management / officials

including its Dean Mr. Arindam Chaudhuri are directed to

prominently display on the website of IIPM that they are not

recognized by any statutory body / authority and the status of the

Foreign University / Institution and/or its Degree or Certificate in the

country of its origin and whose Degree or certificate the students

enrolling in the Course / Programme offered by the respondent No.4

IIPM would be entitled to;

(C) The respondent No.4 IIPM and its management / officials

including its Dean Mr. Arindam Chaudhuri to within one week

hereof, upload and display prominently on the website of the

respondent No.4 IIPM this judgment to ensure that attention of

anyone visiting the said website is drawn thereto (we clarify that the

short time of one week is given since this is admission time, when

students not admitted to Institutes / Colleges of their first choice,

would be queuing for other Institutes).

20. We again clarify that the aforesaid would not relieve the

respondent No.4 IIPM from the liability, if any in any action taken by

any other person for having been misled in the past.

21. We also impose costs of Rs.25,000/- on the respondent No.4 IIPM, to

be paid to Delhi Legal Services Authority within four weeks of today.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE SEPTEMBER 26, 2014/bs