Orissa Lift Irrigation Corporation Ltd. Vs. Rabi Sankar Patro & Ors.
[Civil Appeal Nos. 17869-17870 /2017 arising out of Special Leave Petition (C) Nos.19807-19808/2012]
[Civil Appeal Nos. 17871-17872 /2017 arising out of Special Leave Petition (C) Nos.19851-19852/2012]
[Civil Appeal Nos. 17899-17900 /2017 arising out of Special Leave Petition (C) Nos.19848-19849/2012]
[Civil Appeal Nos. 17897-17898 /2017 arising out of Special Leave Petition (C) Nos.19842-19843/2012]
[Civil Appeal Nos. 17895-17896 /2017 arising out of Special Leave Petition (C) Nos.19844-19845/2012]
[Civil Appeal Nos. 17879-17880 /2017 arising out of Special Leave Petition (C) Nos.19824-19825/2012]
[Civil Appeal Nos. 17885-17886 /2017 arising out of Special Leave Petition (C) Nos.19828-19829/2012]
[Civil Appeal Nos. 17881-17882 /2017 arising out of Special Leave Petition (C) Nos.19814-19815 /2012]
[Civil Appeal Nos. 17883-17884 /2017 arising out of Special Leave Petition (C) Nos.19830-19831/2012]
[Civil Appeal Nos. 17893-17894 /2017 arising out of Special Leave Petition (C) Nos.19840-19841/2012]
[Civil Appeal Nos. 17877-17878 /2017 arising out of Special Leave Petition (C) Nos.19826-19827/2012]
[Civil Appeal Nos. 17889-91780 /2017 arising out of Special Leave Petition (C) Nos.19838-19839/2012]
[Civil Appeal Nos. 17875-17876 /2017 arising out of Special Leave Petition (C) Nos.19812-19813/2012]
[Civil Appeal Nos. 17873-17874 /2017 arising out of Special Leave Petition (C) Nos.19820-19821/2012]
[Civil Appeal Nos. 17887-17888 /2017 arising out of Special Leave Petition (C) Nos.19834-19835/2012]
Civil Appeal Nos. 17891-17892 /2017 arising out of Special Leave Petition (C) Nos.19836-19837/2012]
[Civil Appeal No. 17901 /2017 arising out of Special Leave Petition (C) No.14686/2014]
[Civil Appeal Nos. 17902-17905 /2017 arising out of Special Leave Petition (C) Nos.35793-35796/2012)
Vijay Kumar And Others, Etc. Etc. Vs. Kartar Singh And Others, Etc. Etc.
[Civil Appeal No. 17906 /2017 arising out of Special Leave Petition (C) No.37028/2012]
[Civil Appeal No. 17907 /2017 arising out of Special Leave Petition (C) No.37957/2012]
[Civil Appeal No. 17908 /2017 arising out of Special Leave Petition (C) No.38211/2012]
[Civil Appeal No. 17910 /2017 arising out of Special Leave Petition (C) No.38230/2012]
[Civil Appeal No. 17909 /2017 arising out of Special Leave Petition (C) No. 38220/2012]
[Civil Appeal No. 17912 /2017 arising out of Special Leave Petition (C) No.38846/2012]
[Civil Appeal No. 17911 /2017 arising out of Special Leave Petition (C) No.38458/2012]
[Civil Appeal No. 17913 /2017 arising out of Special Leave Petition (C) No.4108/2013]
[Civil Appeal No. 17915 /2017 arising out of Special Leave Petition (C) No.9495/2013]
[Civil Appeal Nos. 17916-17917 /2017 arising out of Special Leave Petition (C) Nos.11793-11794/2013]
[Civil Appeal No. 17918 /2017 arising out of Special Leave Petition (C) No.11799/2013]
[Civil Appeal No. 17914 /2017 arising out of Special Leave Petition (C) No.12244/2013]
[Civil Appeal No. 17921 /2017 arising out of Special Leave Petition (C) No.17004/2013]
[Civil Appeal No. 17920 /2017 arising out of Special Leave Petition (C) No.17005/2013)
[Civil Appeal No. 17919 /2017 arising out of Special Leave Petition (C) No.17003/2013]
[Civil Appeal Nos. 17926-17950 /2017 arising out of Special Leave Petition (C) Nos.20658-20682/2013]
[Civil Appeal No. 17922 /2017 arising out of Special Leave Petition (C) No.15283/2013]
[Civil Appeal No. 17923 /2017 arising out of Special Leave Petition (C) No.15329/2013]
[Civil Appeal No. 17924 /2017 arising out of Special Leave Petition (C) No.17006/2013]
[Civil Appeal No. 17925 /2017 arising out of Special Leave Petition (C) No.14933/2013]
[Civil Appeal No. 17951 /2017 arising out of Special Leave Petition (C) No.36487/2013]
[Civil Appeal No. 17952 /2017 arising out of Special Leave Petition (C) No.914/2014]
[Civil Appeal Nos. 17953-17960 /2017 arising out of Special Leave Petition (C) Nos.31487-31494/2014]
[Contempt Petition (C) Nos. 194-197/2016 In Special Leave Petition (C) Nos. 35793-35796/2012]
Uday Umesh Lalit, J.
1. Leave to appeal granted in all Special Leave Petitions.
2. These are two groups of appeals, one arising from the Judgment and Order passed by the High Court of Orissa at Cuttack while the other arising from the decision of the High Court of Punjab and Haryana at Chandigarh. Since the issues involved in these matters are same, both sets of matters are being disposed of by this common Judgment.
3. The Directorate of Lift Irrigation in the Government of Odisha was converted into Orissa Lift Irrigation Corporation Limited (hereinafter referred to as the "OLIC").
The service conditions of Engineers including Junior Engineers which is the base cadre in the Engineering Wing of OLIC are governed by Orissa Service of Engineers' Rules, 1941 ("1941 Rules" for short) as amended from time to time. Junior Engineers form the feeder cadre for promotion to the next level, namely, that of Assistant Engineers. Respondent No.11-Rabi Sankar Patro, a Diploma holder in Electrical Engineering, joined OLIC as Junior Engineer (Electrical) and while in service, he acquired B.Tech (Civil) Degree from a Deemed to be University namely JRN Rajasthan Vidyapeeth University, Udaipur, through Distance Education in the year 2009 and thereafter filed Writ Petition No.3848 of 2010 in the High Court Orissa. According to him, he being an in-service graduate Engineer was entitled to be promoted as Assistant Engineer.
Said In the matter arising out of SLP(C) No.19807-19808 of 2012 6 writ petition was allowed without issuing notice to the respondents, placing reliance on an earlier order dated 14.12.2009 passed by the High Court in OJC No.13251 of 2001 by which OLIC was directed to consider the case of the concerned candidates as in-service graduate Engineers. OLIC being aggrieved, filed Review Petition No.58 of 2012 which was dismissed by the High Court on 15.03.2012 along with certain similar review petitions.
The submissions recorded in support of the review petitions in the order of the High Court were as under:-
"The argument advanced by Mr. Ashok Mohanty learned Sr. Counsel for the review petitioners that the opposite parties-employees have acquired Degree Qualification of distance/correspondence education course from JRN Rajasthan Vidyapeeth which is not recognized by AICTE. Therefore, they are not qualified................Learned Sr. Counsel Mr. Mohanty placed much reliance upon the letter issued by AICTE on 6th October, 2010 wherein the AICTE has categorically stated as under:
"It has been the policy of the AICTE, not to recognize the qualifications acquired through distance education mode at Diploma, Bachelors & Master's level in the fields of Engineering Technology including Architecture, Town Planning, Pharmacy, Hotel Management & Catering Technology, Applied Arts & Crafts and Post Graduate Diploma in Management (PGDM). AICTE only recognizes MBA and MCA programme through distance mode." " The Review Petition was dismissed by the High Court, observing inter alia, "....... Substantial number of persons have also acquired Engineering Degree through Universities providing Distance Education which are also Indian Universities. Further Clause (d) of Rule 9 of the Rules, 1941 does not specify that the qualifications obtained through distance education is not permissible & the Degree should be obtained from the approved Universities of the AICTE."
4. Disposal of Review Petition and similar such petitions led to the filing of these appeals, by special leave, by OLIC. It is principally submitted by OLIC that the degrees in Engineering obtained by the concerned candidates by distance education from JRN Rajasthan Vidyapeeth University and similar Deemed to be Universities are not recognized degrees and as such the concerned candidates cannot be said to be Graduate Engineers eligible for benefits under the concerned Rules. It is further submitted that in its Circular dated 09.08.2005 the University Grants Commission ("UGC" for short) had notified that JRN Rajasthan Vidyapeeth University, Udaipur was neither permitted to affiliate any colleges or institutes nor allowed to conduct any course through distance education.
5. While issuing notice in the matters, All India Council of Technical Education ("AICTE" for short) and UGC were added as party-respondents, whereafter AICTE filed its counter affidavits. The matters were taken up on 11.12.2014 when the following Order was passed by this Court:-
"In the course of hearing of these cases we noticed that the UGC even though impleaded as a party respondent had not filed any counter affidavit. We would have proceeded with the hearing even in the absence of a counter affidavit but for the fact that additional documents filed by Respondent No.1 include several documents concerning the UGC some of them in the nature of letters, circulars and communications addressed to several other authorities.
It was in that backdrop that we required the personal presence of the Chairman of the UGC, Professor Ved Prakash who has appeared and broadly explained the UGC stand on the questions that fall for determination. According to Professor Ved Prakash the UGC recognises technical degrees by the distant mode only if the University concerned awards such degrees after obtaining the permission of the AICTE for offering such degrees/courses by distance education.
Professor Ved Prakash further states that wherever the UGC notices that technical educational degrees are being awarded by deemed university without the approval of the AICTE, it can and does take action against the defaulting university by reporting the matter to the Central Government who confers the status of deemed university on such institutions.
When asked whether Professor Ved Prakash can on affidavit state the above position, Prof. Prakash was more than willing to do so. Needless to say some of the counsel appearing in these cases were critical of the stand taken by the UGC and argued that the same was not the true position either on facts or in law. Be that as it may, we deem it just and proper to permit the UGC to file a detailed counter affidavit to this SLP which shall apart from answering other submissions made in the SLP elaborate on the following aspects:
1) Whether the UGC recognises degrees in technical education by open and distance education mode. If so, subject to what conditions, if any.
2) If such degrees are recognised only when they are awarded after obtaining the permission of the AICTE, what happens when the Universities award degrees without obtaining such permission.
3) What action, if any, is the UGC empowered to take under the UGC Act or any other provision of law against the University awarding degrees without the approval of the AICTE and whether any such action has been taken in the past or is proposed to be taken against such Universities hereafter.
4) Whether the Government of India have issued any instructions/circulars regarding recognition of technical education degrees through ODL mode offered by the deemed or statutory universities. If so, what are these instructions/circulars and what is the action/steps to be taken in regard to the degrees awarded or status of such degrees as have already been issued before the issue of such instructions.
5) How does UGC explain its stand in view of the documents filed by respondent No. 1 in I.A. Nos. 5 and 6 of 2014 in these petitions or those enclosed with the SLP or counter affidavit.
6) Since the controversy relates to different deemed universities namely Vinayaka Mission's research Foundation, Salem, Tamil Nadu, IASE Gandhi Vidya Mandir, Sardarshahr Rajasthan, JRN Vidyapeeth Udaipur, Rajasthan and Allahabad, Agriculture Research Institute, Allahabad, U.P. the proposed affidavit by Professor Ved Prakash shall state whether the UGC recognises the degrees awarded by the said Universities by ODL mode even when the same are degrees in technical education including degrees that have already been awarded. We grant to Professor Ved Prakash, Chairman of the UGC four weeks' time to file the affidavit copy whereof shall be served upon learned counsel for the counsel opposite who shall have two weeks' time thereafter to file their response."
6. Prof. Ved Prakash, Chairman, UGC, filed an affidavit on 30.01.2015 dealing with the aforesaid questions. The subsequent Order dated 04.08.2015 of this Court was as under: "There are a large number of cases pending on the principal issue raised in SLP (C) Nos.19807-19808 of 2012 (Orissa Lift Irrigation Corporation Ltd. & Ors.). Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the petitioners submits that the principal issue is whether degrees given by some institutions/universities through distant education ought to be recognized by the employer. He submits that All India Council for Technical Education (AICTE) and University Grants Commission (UGC) have taken the stand that such degrees in technical courses are not recognized by AICTE and therefore not recognized by UGC as well.
Mr. Rajiv Dutta, learned senior counsel appearing for UGC affirms that the UGC does not recognize the degrees. It is the submission of Mr. Rajiv Dutta, learned senior counsel that in a meeting convened by the Ministry of Human Resource Development (MHRD) on 19th February, 2008 it was decided that the approval granted by Distant Education Council (including ) must be reviewed and the approval should be granted to the courses and not to the Institute. That being the position, we are of the opinion that the concerned Secretary in the MHRD should be impleaded as a party so that the stand of the Government of India is clear. Mr. Raju Ramachandran, learned senior counsel makes an oral request for impleadment of the concerned Secretary in the MHRD as a party respondent. On his oral request, the concerned Secretary in the MHRD is impleaded as a party respondent. Amended memo of parties be filed within two weeks."
7. An affidavit has since then been filed on behalf of MHRD2. In the Order dated 26.04.2017 it was recorded:- 2 Ministry of Human Resources and Development, Government of India ".........Our attention was drawn to letter dated 03.12.2007 addressed to UGC seeking ex post facto approval annexing a list of 295 courses run by the JRN Rajasthan Vidyapeeth University under Distance Education system. From the record, it is not clear what type of expertise the said University has, for granting degrees for such large number of courses by distance education mode. It is also not clear as to what is the methodology followed for monitoring the standard of education imparted by its centres on the basis of which such professional degrees are granted. It is also not clear what type of infrastructure is available with the said University."
8. Civil Writ Petition No.1640 of 2008 was filed by one Kartar Singh in the High Court of Punjab and Haryana, in public interest. Certain Deemed to be Universities, such as JRN Rajasthan Vidyapeeth University, Udaipur, Vinayak Mission Research Foundation, Tamil Nadu, IASE Deemed University, Rajasthan were respondents in the petition. It was submitted that these Deemed to be Universities had set up "off campus centers" and "study centers" in violation of the Regulations framed by the UGC; that very same study center, at times was operating for more than one Deemed to be University;
that these study centers completely lacked infrastructure and facilities for courses in Engineering and that the programmes through distance education mode were illegal and without approval. Appropriate reliefs were prayed for, including directions that degrees in Engineering obtained through distance education be declared to be invalid for the purposes of Government jobs in the State. This Writ Petition was allowed by the High Court vide its decision dated 06.11.2012. Para 184 sums up the decision as under:-
"184. In terms of the directions of the Commission, it was necessary for the Deemed to the Universities to seek approval from AICTE. In view of the above, we hold that the Deemed to be Universities have started courses in technical education in violation of the guidelines, instructions, circulars and regulations framed by the Commission not only when they started such courses but also in establishing Study Centres outside their territorial limits and in subjects for which they were not granted Deemed to be university status. Therefore, degrees awarded by such Deemed to be Universities is an illegal act and such illegality cannot be removed or cured by the actions of either the Commission or DEC."
9. The declaration invalidating the degrees in Engineering obtained through distance education mode has been the subject matter of challenge by various students-candidates and institutions. Since the issues raised in those petitions are same as raised in matters arising out of the decision of the High Court of Orissa, these matters were taken up soon after the matters from Orissa. We are principally concerned in these cases only with courses leading to the degrees in Engineering through distance education mode.
10. Thus, the degrees in Engineering obtained by serving diploma holders through Open Distance Learning mode offered by certain Deemed to be Universities through "off campus Study Centres" have been found valid entitling the concerned candidates to benefits available for any serving graduate engineers by the High Court of Orissa whereas the decision rendered by the High Court of Punjab & Haryana is to the contrary. Considering the importance of the issues involved in the matters, this Court vide Order dated 04.05.2017 appointed Mr. C.A. Sundaram, learned Senior Advocate to assist the Court as Amicus Curiae.
11. It may be appropriate at this stage to quote Para 19 of the affidavit filed by Mr. Ved Prakash Chairman UGC:-
"It is pertinent to note that, while bringing the 2010 Deemed Universities Regulations to the notice of the general public, including vide public notice No.F.27-1/2012 (CPP-II), dated 27.06.2013 [annexed and excerpted later in the instant affidavit], the UGC has also clarified that "the UGC has not granted approval to any institution Deemed to be university to establish Study Centres."
This is relevant because, firstly, Deemed to be university status is conferred on academic programmes in specific domains of knowledge. In this case, four Deemed to be universities were conferred that status to offer programmes in the following areas.
S. No.
Deemed University
Field of specialization for institutions Deemed to be Universities status
1.
JRN Rajasthan Vidyapeeth, Udaipur, Rajasthan
Social Work, Education, Arts and Commerce
2
Institute of Advanced Studies in Education, Sardarshahr, Rajasthan
Education
3
Allahabad Agricultural Institute, Allahabad, Uttar Pradesh
Agricultural Engineering Food & Nutrition Biotechnology, Dairy Technology
4.
Vinayaka Mission's Research Foundation Salem, Tamil Nadu
Medical Science, Dental Science, Nursing, Engineering & Technology, Pharmacy, Pysiotherapy and Homoeopathy
Yet, three institutions- Deemed to be Universities (namely, JRN Vidyapeeth Udaipur, Rajasthan; IASE Gandhi Vidya Mandir, Sardarshahr, Rajasthan; and Allahabad Agriculture Research Institute, Allahabad, U.P.) overstepped their mandate and started distance education programmes, including for award of B.E./B.Tech degrees outside their field of specialization without UGC/AICTE approval. Secondly, vide letter dated 09.08.2001 [annexed and excerpted later in the instant affidavit], the UGC has made it clear that franchising of education through private agencies/establishment is not permitted. In addition, the UGC, AICTE and DEC have issued a joint letter dated 13.05.2003 [annexed and excerpted later in the instant affidavit] to Vice-Chancellors/Heads of Institutions asking them to limit the system/programme of delivery of distance education of their institution to the neighbourhood of the location of their main campus or at the most within the State.
And, as mentioned earlier, vide public notice dated 27.06.2013, the UGC has stated that institutions Deemed to be Universities can operate only within its headquarters or from those off campuses/off-shore campuses which are approved by the Government of India through notification published in the official gazette, though the UGC has not granted approval to any institutions Deemed to be Universities offered distance education mainly through franchisee arrangements and Study Centres which are not established with the permission of the UGC."
12. The aforesaid chart shows that the "Deemed to be University" status was conferred keeping in view the potential to offer academic programs in specific domains of knowledge. For example institutions at serial Nos.1 and 2 in the aforesaid table had specialized in Social Work, Education, Arts and Commerce. However by virtue of their "Deemed to be University" status, these institutions thereafter started distance education programs in subjects or courses leading to award of B.E. and B.Tech degrees which were not within their field of specialization. Whether the Deemed to be Universities concerned were within their rights to do so is the basic question. We, therefore, need to consider the statutory framework governing "Deemed to be Universities" and 'Distance Education' more specifically in the field of technical education.
13. "The University Grants Commission Act, 1956" (hereinafter referred to as "the UGC Act") was enacted to make provisions for co-ordination and determination of standards in universities and for that purpose, to establish University Grants Commission ("UGC for short"). Section 2(f) defines "University" to mean "...a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act". Section 3 contemplates conferral of "Deemed to be University" status upon certain institutions for higher studies other than universities.
Section 12 delineates functions of the UGC while Section 13 deals with power of inspection for the purposes of ascertaining the financial needs of the university or its standards of teaching, education and research. Section 26 empowers the UGC to make regulations consistent with the Act and with the Rules made thereunder which include, inter alia:- "(f) defining the minimum standards of instruction for the grant of any degree by any University; (g) Regulating the maintenance of standards and the co-ordination of work or facilities in Universities."
14. In the year 1985, the Indira Gandhi National Open University Act, 1985 (hereinafter referred to as "the IGNOU Act") was enacted to establish and incorporate Open University at the national level, for the introduction and promotion of distance education systems in the educational pattern of 17 the country and for co-ordination and determination of standards in such systems. Section 2(e) defines "Distance Education System" to mean "..the system of imparting education through any means of communication, such as broadcasting, telecasting, correspondence courses, seminars, contact programmes or the combinations of any two or more of such means".
The definitions of "Study Centre" and the "University" are as under- "Study Centre" means a centre established, maintained or recognized by the University for the purpose of advising, counseling or for rendering any other assistance required by the students; "University" means the Indira Gandhi National Open University established under the Act." Study Centre referred to in the IGNOU Act is a centre established by IGNOU and not by any other University. Section 5 then deals with powers of IGNOU and sub-Clauses (i), (iii) and (v) are:-
"(i) To provide for instruction in such braches of knowledge, technology, vocations and professions as the University may determine from time to time and to make provision for research;
(iii) to hold examinations and confer degrees, diplomas, certificates or other academic distinctions or recognitions on persons who have pursued a course of study or conducted research in the manner laid down by the Statutes and Ordinances.
(v) to determine the manner in which distance education in relation to the academic programmes of the University may be organized." Sub clause (v) speaks of 'distance education' in relation to the academic programme of IGNOU. Few other clauses of Section 5 however refer to other universities and institutions of higher learning and they are:-
"(vii) to co-operate with, and seek the co-operation of, other universities and institutions of higher learning, professional bodies and organizations for such purposes as the University considers necessary;
(xiii) to recognize examinations of, or periods of study (whether in full or part) at, other universities, institutions or other places of higher learning as equivalent to examinations or periods of study in the University, and to withdraw such recognition at any time;
(xxiii) to recognize persons working in other universities, institutions or organizations as teachers of the University on such terms and conditions s may be laid down by the Ordinances" At this stage Clauses (i) and (j) of Section 24 of IGNOU Act also need to be noted.
"Section 24 subject to provisions of this Act, the Statutes may provide for all or any of the following matters, namely:-
(i) The conferment of autonomous status on Colleges and Study Centres;
(j) the co-ordination and determination of standards in the open University and distance education systems and the allocation and disbursement of grants to Colleges and other universities and institutions." 15. Section 16 of IGNOU Act deals with authorities of the University and clause (7) deals with "such other authorities" as may be declared by the 19 Statutes to be the authorities of the University.
In pursuance of powers conferred under Section 16(7) read with Section 24 and 2nd Schedule to the IGNOU Act, Distance Education Council ("DEC", for short) was constituted vide Notification dated 22.11.1991. Para 3 of the Notification stated that DEC would consist of certain members including Secretary of UGC and a member to be nominated by the Chairman, UGC. However, there was nothing in this Para requiring any member or representative of AICTE (which by 1991 was a Statutory Authority) to be member of DEC. Para 4 dealt with powers and functions of DEC and the relevant portion of said Para is to the following effect:-
"4. Powers and Functions of the Distance Education Council a) It shall be the general duty of the Distance Education Council to take all such steps as are consistent with the provisions of this Act, the Statutes and the Ordinances for the promotion of the open university/distance education systems, its coordinated development, and the determination of its standards and in particular:
(i) To develop a network of open universities/distance education institutions in the country in consultation with the State Governments, Universities and other concerned agencies;........
(viii) To take such steps as are necessary to ensure the coordinated development of the open university/distance education system in the country.
(xiii) To advise State Governments, universities and other concerned agencies on their proposals to set up 20 open universities or to introduce programmes of distance education;"
16. The All India Council for Technical Education Act, 1987 (hereinafter referred to as the "AICTE Act") was enacted to provide for the establishment of AICTE with a view to proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. Terms "Technical Education", "Technical Institution" and "University" as defined in the AICTE Act are as under:
"(g) "technical education" means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare;
(h) "technical institution" means an institution, not being a University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;
(i) "University" means a University defined under clause (f) of Section 2 of the University Grants Commission Act, 1956 (3 of 1956) and includes an institution Deemed to be a University under Section 3 of that Act."
17. Chapter II of the AICTE Act speaks of "Establishment of the Council", namely AICTE and Section 10 deals with the "Powers and Functions of the Council". Section 10 is as under:
"10. (1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may-
(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;
(b)coordinate the development of technical education in the country at all levels;
(c)allocate and disburse out of the Fund of the Council, such grants on such terms and conditions as it may think fit to-
(i) technical institutions, and
(ii) Universities imparting technical education in coordination with the Commission;
(d)promote innovations, research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes;
(e)formulate schemes for promoting technical education for women, handicapped and weaker sections of the society;
(f)promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community;
(g)evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;
(h)formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers;
(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;
(j) fix norms and guidelines for charging tuition and other fees;
(k)grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;
(l) advise the Central Government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examinations and awarding of membership certificates;
(m)lay down norms for granting autonomy to technical institutions;
(n)take all necessary steps to prevent commercialization of technical education;
(o)provide guidelines for admission of students to technical institutions and Universities imparting technical education;
(p) inspect or cause to inspect any technical institution;
(q)withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council;
(r) take steps to strengthen the existing organisations, and to set up new organisations to ensure effective discharge of the Council's responsibilities and to 23 create positions of professional, technical and supporting staff based on requirements;
(s)declare technical institutions at various levels and types offering courses in technical education fit to receive grants;
(t)advice the Commission for declaring any institution imparting technical education as a deemed University;
(u)set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the Council, or to the Commission or to other bodies, regarding recognition or de-recognition of the institution or the programme;
(v) perform such other functions as may be prescribed."
18. UGC, DEC and AICTE as well as MHRD Government of India have issued various Notifications, Circulars and Guidelines touching upon the issues involved in the present cases, which may now be referred to:
A. On 25.11.1985, UGC (the minimum standards of instructions for the grant of the first degree through formal education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Science) Regulations, 1985 (hereinafter referred to as 1985 UGC Regulations) came into force which applied to every University including a Deemed to be University.
The relevant portion of these Regulations are:- "2(3). No student shall be eligible for the award of the first degree unless he has successfully completed a three 24 year course; this degree may be called the B.A./B.SC/B.Com. (General/Honors/Special) degree as the case may be.... 3(1). Every University enrolling students for the 1st Degree Course shall ensure that the number of actual teaching days does not go below 180 in an academic year..... 3(2). The total periods provided in the timetable shall not be less than 40 clock hours a week. The timetable on working days shall be so drawn up that physical facilities are adequately utilized and not used only for a few hours a day."
B. In 1986, National Policy on Education was published by Government of India, Part VI of which dealt with Technical and Management Education, Paras 6.6, 6.8 and 6.19 of the Policy were:-
"6.6. In view of the present rigid entry requirements to formal courses restricting the access of a large segment of people to technical and managerial education, programmes through a distance learning process, including use of the mass media will be offered. Technical and management education programmes, including education in polytechnics, will also be on a flexible modular pattern based on credits, with provision for multi-point entry. A strong guidance and counseling service will be provided.
6.8. Appropriate formal and non-formal programmes of technical education will be devised for the benefit of women, the economically and socially weaker sections, and the physically handicapped.
6.19. The All India Council for Technical Education, which has been given statutory status, will be responsible 25 for planning, formulation and maintenance of norms and standards, accreditation, funding of priority areas, monitoring and evaluation, maintaining parity of certification and awards and ensuring the coordinated and integrated development of technical and management education. Mandatory periodic evaluation will be carried out by a duly constituted Accreditation Board. The Council will be strengthened and it will function in a decentralized manner with greater involvement of State governments and technical institutions of good quality."
C. The AICTE (Grant of Approval for starting new Technical Institutions, introduction of courses or programmes and approval of intake capacity of seats for courses or programmes) Regulations were issued in 1994 (1994 AICTE Regulations, for short). Clause 4 of these Regulations was to the following effect-
"4.0 Requirement of Grant of Approval 4.1 After the commencement of these regulations,
a) No new Technical Institution or University Technical Department shall be started; or
b) No course or programme shall be introduced by any Technical Institution, University including a Deemed University or University Department or College or;
c) No Technical Institution, University or Deemed University or University Department or College shall continue to admit students for Degree or Diploma courses or programmes;
d) No approved intake capacity of seats shall be increased or varied; 26 Except with the approval of the Council."
D. On 01.03.1995, a notification was issued by Government of India to the following effect:- "On the recommendation of the Board of Assessment for Education Qualifications, the Government of India has decided that all the qualifications awarded through Distance Education by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the UGC Act, 1956 and Institutions of National importance declared under an Act of Parliament stand automatically recognized for the purpose of employment to posts and services under the Central Government, provided it has been approved by Distance Education Council, Indira Gandhi National Open University, K 76, Hauz Khas, New Delhi-110016 and wherever necessary by All India Council for Technical Education, I.G. Sports Complex, I.P. Estate, New Delhi-110 002."
E. On 03.07.1997, DEC published Guidelines for Design, Development and Delivery of programmes/courses through distance mode. These were essentially dealing with distance education as a concept without specifying the details or mechanism as to how and in what circumstances the concerned universities and institutions were expected to initiate courses in distance education.
F. In 2004, UGC issued Guidelines for establishing new departments within the campus, setting up of off-campus centre(s)/institution(s)/off-shore campus and starting distance education programmes by the Deemed to be universities, 2004 (2004 UGC Guidelines, for short). The terms institution, off-campus centre, off-shore campus and Study Centre were defined by these Guidelines as under:-
"(a) "Institution" means an institution set up by the same management to impart studies in a specialized branch of study and registered under the same society or trust under which the existing deemed university is registered.
(b) "Off-campus centre" means a center of the university located outside its main campus (within or outside the State where the deemed university is located)' operated and maintained as its constituent unit by the resources of the university, having the centre's own compliment of facilities, faculty and staff.
(c) "Off-shore Campus" means a campus of the university located outside the country, established and maintained as its constituent unit by the resources of the university having its own compliment of facilities, faculty and staff.
(d) "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 the context of distance education."
It was laid down that a Deemed to be University shall normally be authorized to operate within its own campus to conduct the authorized courses falling within the area of their specialization. However, in deserving cases, the Deemed to be University could start new departments within the university campus or start off-campus centre(s)/institutions/off-shore campus(s) on selective basis with prior specific permission of the UGC in each and every individual case. The procedure in that behalf was laid down as under:
"2. All Deemed to be universities intending to set-up new departments within their campus, off-campus centre(s) or an institution outside the main campus of the deemed university may apply as follows:
2.1 The deemed university intending to open a new department in its campus or an off-campus center/ institution shall approach the University Grants Commission (UGC) at least six months prior to opening such center on a proforma prescribed for this purpose (Annexure-I). The deemed university desirous of starting the new off-campus center / institution or introducing a new course/ programme in a professional subject, shall comply with all the requirements as required by statutory professional Councils and obtain their prior approval before approaching the UGC.
2.2 The new Departments, new off-campus center/ institution shall be set up only after obtaining approval of the UGC and that of the concerned state Government where such a center is proposed to be established. The UGC shall cause spot visit/ verification of the proposed new departments, new off-campus center/institutions to verify its infrastructure facilities, programmes, faculty, 29 financial viability, etc. before giving permission to start the centre. The report of the committee shall be considered by the Commission for its approval.
2.3 An off-shore campus shall be set up only after due permission from the Government of India on the recommendations of the UGC and also that of the Government of the host country" Paras 3.3, 3.4 and 3.8 were as under:
"3.3 The off-campus centre/institution/off-shore campus shall conform to the relevant regulations/norms of the UGC and other statutory bodies concerned regarding minimum standards of instruction, qualifications of teachers, merit-based admission of students on an all India basis and the fee structure etc. and shall have adequate number of qualified teachers.
3.4 The new off-campus centre/institution/off-shore campus shall offer only those courses which are approved by the appropriate bodies of the deemed university. If the course to be offered in the centre is in technical/professional subject, its academic programmes shall have to be approved by the concerned statutory professional council.
3.8. The over-all performance of the off-campus centre/ institution/off-shore campus shall be monitored annually, initially for three years, and subsequently after every five years by the UGC whose directions for management, academic development and improvement shall be binding. The UGC shall associate the nominee(s) of the concerned statutory professional council in the monitoring process." Paras 4 and 5 dealt with Distance Education and Ex-Post-Facto Approval in following terms:
"4. Distance Education: The Deemed to be University could offer the distance education programmes only with the specific approval of the Distance Education Council (DEC) and the University Grants Commission (UGC). As such, any Study Centre(s) can be opened only with the specific approval of Distance Education Council and UGC.
5. Ex-Post-Facto Approval: The Deemed Universities shall obtain the ex-post-facto approval of the GOI/UGC/DEC, whichever applicable within a period of six months in the following cases: I. Continuation of all the Departments opened in the campus of the Deemed Universities and off-campus Study Centre(s)/ institutions / offshore campus started without the prior approval of the UGC. II Distance education programme(s)/Study Centre(s) started without the specific approval of the DEC/UGC."
G. On 03.02.2004 DEC published an advertisement that it was mandatory for all Centres/Institutions/Directorates offering programmes through Distance Education mode to apply to DEC and obtain prior approval before starting any new Centres/Institutions/Directorates of programme. It further stated that the Distance Education Centres/Institutions/Directorates already offering programmes through distance mode should submit their applications for approval of DEC in the prescribed format.
H. A circular was issued by the UGC on 16.03.2004 directing Deemed to be Universities conducting courses through Distance Education mode to seek ex post facto approval for the courses conducted by such Deemed to be Universities.
19. We have referred to the notifications, circulars and guidelines as were in existence and in force in 2004. The Deemed to be Universities in the present case had started their distance education programmes without taking any prior approval from any of the authorities including UGC, AICTE or DEC. However, it appears that in terms of paragraphs 4 and 5 of 2004 UGC Guidelines, the advertisement of DEC dated 03.02.2004 and circular of UGC dated 16.03.2004, the concerned Deemed to be Universities sought ex-post-facto approval for courses conducted by them through distance education mode. Before we deal with the facts leading to the consideration of such ex-post-facto approval, an important development must be adverted to. On 24.09.2001 a decision was rendered by this Court in Bharathidasan University and Another v. All India Council for Technical Education and Others
3. The appellant therein, created under Bharathidasan University Act with its area of operation over three districts in the State of Tamil Nadu had 3 (2001) 8 SCC 676 32 commenced courses in Technological subjects in its own departments as an adjunct to the University without any approval of AICTE. A writ petition was filed by AICTE submitting that no such courses could be started without its prior approval. The plea was accepted by the High Court of Madras which view was challenged in this Court.
While dealing with question whether prior approval of AICTE was required for a "University" to start courses in technical education, this Court held that the definition of "Technical Institution" under the AICTE Act excludes a "University" and since the power of grant of approval for starting new "technical institution" and for introduction of new courses or programmes under Section 10(k) of the AICTE Act would not cover a "University" but only a technical institution, the appellant-university was within its rights to start such courses without the prior approval of the AICTE.
20. Bharathidasan (supra) having laid down that prior approval of AICTE was not required for a University to start technical courses, the subsequent guidelines, notifications issued by the UGC, AICTE and the Government of India were framed in the light of said decision. The understanding entertained by all the authorities was that AICTE was not competent to deal with issues of prior approval in respect of "Universities" for technical courses and since the term "University" under the UGC Act 33 includes Deemed to be Universities, AICTE has no power to deal with issues of prior approval for technical courses in respect of Deemed to be Universities as well.
21. We now turn to the aspect of consideration by the concerned authorities of request for grant of ex-post facto approval for courses in Technology/Engineering conducted by Deemed to be Universities, namely, JRN Rajasthan Vidyapeeth, Rajasthan ('JRN' for short), Institute of Advanced Studies in Education, Rajasthan ('IASE' for short), Allahabad Agricultural Institute, Allahabad ('AAI' for short) and Vinayaka Mission Research Foundation, Tamil Nadu ('VMRF' for short). None of these Deemed to be Universities had taken any prior permission from any of the authorities, namely, UGC, AICTE and DEC, nor had they even intimated at any juncture the fact that they were conducting such courses in Technology/Engineering through distance education mode. Pertinently, JRN, IASE and AAI had no expertise or specialization in the fields of Technology/Engineering. None of these three Deemed to be Universities was having any regular Engineering college or Faculty in Technology/Engineering at their own campus when they commenced courses in Technology/Engineering by distance education mode through Study Centres all over the Country. The facts stated hereinafter narrate how 34 their applications for ex-post facto approval were dealt with and by way of illustration the facts pertaining to JRN, are dealt with in detail.
A. On 10.05.2004 JRN sought approval of DEC for courses conducted by it under distance education. The information supplied in regard to technical courses leading to degrees in Engineering in various disciplines4 show that details of 19 Study Centres with names of Coordinators and Counsellors were given. Said Co-ordinators and Counsellors were common for all disciplines and courses. At the same time there was no Study Centre in the State of Orissa.
B. On 27.07.2004, UGC asked JRN to submit a complete list of its off campus centres giving details of its courses/infrastructure within 21 days of the receipt of the letter failing which public notice would be issued that such degrees were not recognized by UGC. The relevant portion of the letter was to the following effect:
"1. The Commission vide its letter of even number dated 5th May, 2003 and subsequent reminders dated 6th August, 2003 and 13th October, 2003 had requested the Vidyapeeth to submit the details of its Study Centres. In response to that the Vidyapeeth vide its letter No.RVU/VC/2004-2005/26 dated 2nd April, 2004 submitted a list of 517 centres, but did not furnish any details about the approval of UGC, the statutory Councils 4 B.Tech (Computer Science), M.Tech (Computer Science) B.Tech (Civil) and M.Tech (Civil)) 35 and the concerned State Governments nor did the Vidyapeeth submit any information about the Infrastructural facilities, faculty etc. provided in these Centres............................................................
5. The Commission has been receiving a number of complaints that Rajasthan Vidyapeeth, Udaipur is engaged in offering Undergraduate and Postgraduate level courses in various disciplines including Computer Science, Business Studies, Para-medical Studies and Physiotherapy etc. through Study Centre(s) spread all over the country which do not have required infrastructure to maintain the standard of education.
6. A warning was also issued to the Vidyapeeth vide this office letter of even number dated 11th June, 2004 that the degrees awarded in violation of the instructions contained in the Guidelines shall be regarded as unspecified and render the Vidyapeeth to be punishable under relevant provisions of the UGC Act, 1956.
7. The Study Centre/off-campus centres in distance mode opened by Rajasthan Vidyapeeth are without prior approval of UGC.
8. The Vidyapeeth is silent on furnishing the details of fulfilling the norms as laid down by the Distance Education Council nor has attached specific approval of Distance Education Council and UGC.
9. It may be pointed out that unless the Vidyapeeth is fully prepared in terms of faculty and infrastructure laid down by the Statutory bodies, it would not be desirable to start any graduate and postgraduate level courses."
C. In response to a query from Commissioner (Higher Education) Government of Gujarat, IGNOU informed vide its letter dated 36 03.08.2005 that DEC had not recognized JRN and AAI to offer Distance Education programmes anywhere in the Country as major deficiencies were found in their delivery system and self instructional materials.
D. On 09.08.2005, a notice/circular was issued by UGC to the following effect:
"UNIVERSITY GRANTS COMMISSION
BAHADUR SHAH ZAFAR MARG
NEW DELHI - 110 002
F-6-9/2004(CPP-I)
9th August, 2005
Subject: Non-Recognition of Study Centres of Deemed Universities-
(i) JRN Rajasthan Vidyapeeth, Udaipur
(ii) Allahabad Agricultural Institute (AAI), Allahabad & (iii) IASE Gandhi Vidya Mandir (IASE) (Deemed University), Sardarshahr, Rajasthan The University Grants Commission has been receiving a large number of letters from individuals and organizations seeking clarification about Study Centres of Deemed Universities particularly those associated with (i) Janardan Rai Nagar Rajasthan Vidyapeeth (Deemed University), Udaipur (ii) Allahabad Agricultural Institute (Deemed University), Allahabad (iii) Institute of Advanced Studies in Education of Gandhi Vidya Mandir (IASE) (Deemed University), Sardarshahr, Rajasthan.
It is hereby informed that (i) Janardan Rai Nagar Rajasthan Vidyapeeth (Deemed University), Udaipur (ii) Allahabad Agricultural Institute (Deemed University), Allahabad (iii) Institute of Advance Studies in Education of Gandhi Vidya Mandir (IASE) (Deemed University), Sardarshahr, Rajasthan have been declared as Deemed to 37 be Universities by the Government of India under Section 3 of the UGC Act 1956. These Institutions are empowered to award degrees as specified by the UGC under Section 22 of the UGC Act 1956.
However above three Deemed Universities have not been permitted to affiliate a College/Institute. These Institutions have also not been allowed to conduct any course through Distance Education Study Centre so far, by the Distance Education Council/UGC. Needless to mention that prior approval of Distance Education Council, IGNOU Campus, New Delhi-110 067 is also required for starting courses offered under Distance Education mode. It is for the information of all concerned that no Deemed to be University can start Study Centres/franchises without the prior approval of UGC and that of State Government where the Centre(s) is/are proposed to be opened. Private franchising is not allowed.
Moreover, for starting any UGC approved degree course through Distance mode, prior approval of the Distance Education Council is mandatory. Students are advised to keep these things in mind while getting admission in Deemed to be Universities.
(V.K. Jaiswal)
Under Secretary
Ph: 011-23235640
Publication Officer
UGC Website
New Delhi"
E. On 30.08.2005 a communication was addressed by UGC to JRN, the relevant portions of which were:-
38 "........................The Vidyapeeth has reportedly been running 649 Study Centres/off campus centres under Distance Education mode without the approval of UGC/Statutory councils/State Government. The Distance Education Council (IGNOU, New Delhi) has not recognized Rajasthan Vidyapeeth to offer Distance Education Programme anywhere in the country so far because major deficiencies have been found in the delivery system and self instructional materials. (Ref.IGNOU/DEC letter No.IG/PVC/05 dated 3rd August, 2005). The Vidyapeeth may please ensure compliance of the following:
1. All off-campus centres/Extension Centres/Study Centres and Academic Centres offering distance education programmes of the Vidyapeeth running without the approval of UGC and Distance Education Council be closed down immediately. A list of such centres may also please be sent to UGC along-with the documentary evidence of closure of these centres.
2. Awarding of X and XII certification be stopped immediately and a public notice to this effect may be published in National Newspapers.
3. An explanation/comments may also be furnished on complaint(s) regarding Study Centres particularly those operating in Gujarat."
F. A show-cause notice dated 27.10.2005 was thereafter issued by UGC to JRN for non-adherence to UGC norms regarding Study Centres and an explanation was sought within days failing which appropriate action could be taken by UGC. 39
G. On 28.11.2005, All India Council for Technical Education (AICTE) Grant of Approval for starting new technical institutions, introduction of courses or programmes and increase/variation of intake capacity of seats for the courses or programmes and Extension of approval for the existing technical institutions and maintenance of norms and standards in Universities including Deemed to be Universities Regulations, 2005 (2005 AICTE Regulations, for short) were issued. Para 2.5 of the Regulations dealing with grant of approval was to the following effect:-
"2.5 Requirement of grant of approval (1) No new technical institution of Government, Government Aided or Private (self financing) institution, whether affiliated or not affiliated to any University shall be started and no new courses or programs shall be introduced and no increase and/or variation of intake in the existing Courses/Programmes shall be effected at all levels in the field of 'Technical Education' without obtaining prior approval of the Council. The Council may take Legal action against such defaulting Institution/Society/Company/Associated Individuals as the case may be for contravening provisions of this regulations by conducting courses/programmes in "Technical Education" without obtaining prior approval from AICTE.
(2) No existing technical institution of Government, Government Aided or Private (self financing) institution whether affiliated or not affiliated to a University shall conduct any technical course/programme without prior approval of the Council.
(3) No University including Deemed University shall conduct technical courses/programmes without ensuring maintenance of the norms and standards prescribed by AICTE.
(4) No University, Board or any other body shall affiliate technical courses/programmes not approved by the AICTE.
(5) No admission authority/body/institution shall admit students to a course/programme of technical education not approved by AICTE."
H. On 05.01.2006 a circular was issued by DEC stating that the programmes of JRN through Distance Mode were not approved by DEC.
I. On 01.02.2006 a letter was addressed by JRN to UGC undertaking to close its Distance Education Programme but requesting UGC to grant one time specific approval insofar as existing students in the programmes currently in operation.
J. On 05.04.2006 a Notification was issued by MHRD, Government of India in exercise of powers vested in the Central Government under Section 20(1) of UGC Act and under Section 20(1) of AICTE Act clarifying the role of the UGC and AICTE in maintaining standards of education in institutions notified as deemed to be universities. The relevant portion of the notification is as under:
"It is not a pre-requisite for an institution notified as a "Deemed to be University to obtain the approval of the AICTE, to start any programme in technical or management education leading to an award, including degrees in disciplines covered under the AICTE Act, 1987. However, institutions notified as 'Deemed to be University' are required to ensure the maintenance of the minimum standards prescribed by the AICTE for various courses that come under the jurisdiction of the said Council.
It is expected that the institutions notified as 'Deemed to be University' maintain their standards of education higher than the minimum prescribed by the AICTE. In accordance with provisions under Section 11(1) of the AICTE Act, 1987, the AICTE may cause an inspection of the relevant departments of the institution declared as 'Deemed to be University" offering the courses that come under the jurisdiction of the AICTE Act, 1987 in order to ensure the maintenance of standards by them."
K. The application preferred by JRN for ex-post facto approval was considered by UGC in its meeting dated 11.06.2006 and the Chairman was authorized to do the needful through appropriate mechanism. The Chairman, UGC accordingly constituted a two members Committee with Legal Consultant, UGC, as Special Invitee.
This Committee held meeting in the UGC office on 30.06.2006 and interacted with representatives of JRN. The decision of the Committee was as under:-
"After examining all the aspects regarding one time ex-post-facto approval to Sri Janardan Rai Nagar Rajasthan 42 Vidyapeeth, Udaipur for the students admitted in various Degree courses under Distance Education Mode from 1st June, 2001 to 31st August, 2005 as also keeping in view the future of a large number of innocent students, the Committee recommended one-time ex-post-facto approval for the students
