Gauhati High Court
WA/33/2017 on 6 May, 2022
Author: S. Saikia
Bench: Chief Justice, Soumitra Saikia
1
GAHC010121842017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
(PRINCIPAL SEAT AT GUWAHATI)
WA 33/2017
The University Grants Commission,
Represented by the Secretary, having its Head Office at Bahadur
Shah Zafar Marg, New Delhi - 110002.
- Writ appellant
- Versus -
1. The Global Open University, Nagaland,
Represented by the Registrar Dr. Imotemsu Ao,
Having its office opposite to the Railway Station,
Dimapur - 797112, Nagaland.
(Writ petitioner in WP(C) 217(K)/2013)
2. Shri Lipoklemba,
Son of R. Imkong,
Resident of Sematila Colony,
Dimapur, Nagaland.
3. Smti Temsujuhngla Lemtur,
D/o I. Supong Lemtur,
Resident of Para-Medical Colony, Kohima,
Nagaland.
4. Sri Vivoto Poru,
S/o Pusazo Puro.
5. Shri Paudeni Hega,
S/o Lungheibanbe.
6. Shri Paudeni Hega,
S/o Lungheibanbe.
7. Shri Paudeni Hega,
S/o Lungheibanbe.
8. Shri Paudeni Hega,
2
S/o Lungheibanbe.
9. Shri Paudeni Hega,
S/o Lungheibanbe.
10. Shri Velhusahu Vero,
S/o Zapovi Vero.
11. Shri Keneikhrieno Bie-o,
S/o Shri Lalhou Bie-o.
12. Shri Lipoktemjen Imsong,
S/o Shri Imtinuken Imsong.
13. Shri Supongwati,
S/o Imnuksangba.
14. Smti Sashimongla Jamir,
D/o Yarnungba Jamir.
15. Smti Nyanbeni Odyuo,
D/o K. Mhonchumo Odyuo.
16. Shri Zhasalie Napranotsu,
S/o Neingatuo Napranotsu.
17. Shri Simon,
S/o Alet Singset.
18. Shri Sepili L. Sangtam,
S/o Lishoto.
19. Shri Shah Alom,
S/o Lt. Abdul Khaleque.
20. Smti Alemjungla Jamir,
D/o Lt. Wailemba.
21. Shri Rongsenshilu Aier,
S/o Rowatemjen Aier.
22. Shri Bandangkumzuk,
S/o N. Sako.
23. Shri Rekumkaba,
S/o Lt. Temsutoshi.
24. Smti Neisevonuo Belho,
D/o Neikolhoulie Belho.
[Writ Petitioners in WP(C) No. 8(K)/2014]
- Respondents
25. The Union of India, Represented by the Secretary, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, Dr. Rajendra Prasad Road, 3 New Delohi-110001.
- Pro-forma respondent Advocate for the appellant : Mr. A. Chamuah, Advocate.
Advocate for the respondents : Mr. D. J. Kapil, Advocate.
Mr. G. Rahul, Advocate.
BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Date of hearing : 04.03.22
Date of judgment : 06.05.2022
JUDGMENT AND ORDER
(CAV)
(S. Saikia, J)
Heard Mr. A. Chamuah, learned counsel for the writ appellant. Also heard Mr. D. J. Kapil, learned counsel appearing for respondent no. 1 as well as Mr. G. Rahul, learned counsel for respondent nos. 2 to 24.
2. This writ appeal is directed against the judgment and order dated 16.06.2015, passed by the learned Single Judge in WP(C) No. 217(K)/2013 and WP(C) No. 8(K)/2014, whereby the writ petition filed by the present respondent no. 1 was allowed.
3. Respondent no. 1 is the Global Open University, Nagaland (hereinafter referred to as "respondent university"). The respondent university was incorporated by an Act of the legislature of the State of Nagaland. It was established under the provisions of the Global Open University, Nagaland, Act, 2006 (hereinafter referred to as "Act 4 of 2006"), and is declared as a State University. The Act of 2006 was notified in the official gazette of Nagaland dated 29.06.2011. The said university is recognized under section 2(f) of the University Grant Commission (UGC) Act, 1956 and it is stated that the said university is the only State Open University in the field of distance education in Nagaland, which has been functioning since the year 2006. The distance education courses provided by the respondent university were under the approval of the Distance Education Council (DEC), which was established under Statute 28 of the Indira Gandhi National Open University (IGNOU) Act, 1985. The respondent university was granted provisional recognition for the period of one year w.e.f. 02.06.2008. Although the respondent university requested for grant of regular recognition, no positive response was received from the DEC. Subsequently, Statute 28 of the IGNOU along with DEC came to be abolished and the standards and requirements to be maintained for distance education were being looked into by the UGC. Till such time proper regulations were framed, the standards and requirements, as provided earlier under the DEC, were adopted as the norms. Upon various requests made by the respondent university, the present appellant, namely, UGC constituted an expert committee for inspection of the university. The expert committee in its report did not recommend grant of regular recognition or extension of the provisional recognition till grant of regular recognition. Pursuant thereto, by the impugned communication dated 27.08.2013 (Annexure-B) issued by the UGC, the respondent university was restricted from offering any 5 programmes under distance education mode, which is generally known as "Open and Distance Learning" (ODL). This letter dated 27.08.2013 was assailed by the respondent university in the writ petition and the impugned communication was interfered with and set aside by the learned Single Judge resulting in the present writ appeal being preferred by the UGC as the appellant.
4. Learned counsel for the UGC Mr. A. Chamuah strenuously submits that the order of the learned Single Judge in interfering with the letter dated 27.08.2013 is erroneous inasmuch as it is a mandate of the Act read with the regulations prescribed that unless recognition is granted and/or extended by the competent authority, no courses can be conducted and no degrees or diplomas can be offered by any institute including a university on ODL platform. It is also submitted that the respondent university was well aware of this position as it was also mentioned in its provisional recognition. However, the university continued conducting programmes on ODL platform and conferring various degrees and diplomas to the students which was contrary to the UGC norms under the Regulations. Learned counsel for the appellant submits that the UGC is a statutory authority constituted under an Act of the Parliament and is empowered to ensure maintenance of adequate infrastructure and standards for imparting education and other courses as well as conferring various degrees and diplomas by the universities and/or deemed universities including courses imparted through ODL platform. It is further submitted by the learned counsel for the appellant that there are specific regulations prescribed under which 6 steps are required to be taken by the institutions as well as the universities for maintaining the standards prescribed in this regard. If the prescribed standards are not maintained by the universities, as prescribed under the regulations, the UGC is empowered to take adequate steps, including de-recognition of the courses conducted by such universities or institutions. The respondent university was aware that its provisional recognition was only for a period of one year w.e.f. 02.06.2008. As such, unless the provisional recognition was extended and/or regular recognition was conferred, the respondent university ought not to have proceeded with the programmes on ODL platform. With effect from 01.05.2009 the respondent university did not have any recognition either from the DEC or from the UGC and, therefore, it ought not to have continued with undertaking its courses and/or conferring degrees and diplomas on ODL platform. The UGC had received complaints against the respondent university regarding violation of the norms, regulations as well as financial irregularities. The expert committee which was constituted by the UGC had visited the university and had conducted detailed inspection and inquiry and, on the basis of the recommendations received from the expert committee, the UGC had decided not to extend the recognition granted to the respondent university vide their communication dated 27.08.2013. The appellant submits that the sole ground of interference by the learned Single Judge is of violation of the principles of natural justice. It is submitted that the expert committee constituted by the UGC had conducted detailed inspection and verification of the university from 7 various perspective and had submitted a detailed report recommending that recognition ought not to be granted. The UGC had accepted the report of the expert committee and had accordingly declined to grant regular recognition and/or to extend the provisional recognition. Mr. Chamuah, learned counsel for the appellant argues that although the details contained in the report were available to the writ petitioner during the proceedings before the learned Single Judge, however, the findings in the report etc. were never assailed by the university. That apart, the decision of the UGC based on the expert committee report is not a judicial or quasi- judicial order and, therefore, non-furnishing of the report of the expert committee cannot be held to be a ground to interfere with the decision of the UGC not to grant/extend the recognition to the university.
5. Mr. D. J. Kapil, Learned counsel for the respondent university submits that the university had taken all steps to proceed in right earnest towards imparting education through ODL platform. The State of Nagaland being a State facing different hurdles and economic issues, by imparting distance education to various students the university was merely extending the constitutional obligation of imparting adequate and proper education to various students across the State and across the country who evinced interest in the courses it had offered. The respondent university was granted provisional recognition for a period of one year w.e.f. 02.06.2008. However, in spite of several communications and representations made to the UGC and the DEC as well as the communication issued by the 8 Department of Education, State of Nagaland, there was no response from the DEC at the relevant point in time as to why extension was not being granted to the provisional recognition of the university. In the website of the DEC also there was no mention to the effect that the recognition granted to the respondent university would not be extended or has been declined. There was no official communication made to the university in this regard either from the DEC or from the UGC prior to the communication dated 27.08.2013 issued by the UGC informing or intimating the respondent university that its courses offered on ODL platform are no longer recognized and that it should not proceed any further with such courses. It is further submitted by the learned counsel for the respondent university that the university was at least entitled to a notice and an opportunity of being heard on the grounds and reasons for such rejection prior to issuance of the impugned communication dated 27.08.2013. As this was not done, the same was in violation of the rules of natural justice, which is implicit in the action taken by the UGC. Therefore the learned Single Judge had correctly interfered with the communication dated 28.08.2013 issued by the UGC and directed for furnishing of a copy of the report of the expert committee. The learned Single Judge granted liberty to the UGC to constitute an expert committee afresh and thereafter proceed in the matter afresh. Therefore, there is no infirmity in the impugned judgment and order which calls for any interference.
6. Mr. G. Rahul, learned counsel for the private respondents submits that it is the students who are the worst sufferers in the 9 tussle between the UGC and the university. He submits that they are innocuous students who had enrolled for the degree/diploma courses offered by the respondent university through ODL platform. Since the students were not at fault, even assuming that the courses offered by the university after expiry of the provisional recognition are not recognized, then the student community cannot be made to suffer and the UGC is required under the law to ensure that the degrees and diplomas obtained by the students through distance learning mode are duly recognized.
7. We have heard the learned counsel for the parties and have perused the impugned judgment of the learned Single Judge as well as the pleadings on record.
8. A perusal of the pleadings reveals that pursuant to the grant of provisional recognition, the respondent university has consistently requested the concerned authority for extension of its provisional recognition as well as for grant of regular recognition. There were several communications issued by the respondent university to the DEC, as it then was, as well as to the UGC. In spite of the requests made by the respondent university, certain communications were also issued by the Higher Education Department, Government of Nagaland, and other government officials of the State of Nagaland requesting for grant of regular recognition or for extension of the provisional recognition till regular recognition is granted. There were also requests made for inspection of the university by committees constituted by the DEC/UGC. Finally, a committee was constituted in 10 2012 to visit the university and to submit a report towards its recognition.
9. In the recognition policy of the DEC, which is a part of the pleadings, several universities across the country are shown in the list appended to the said policy, giving details about their provisional recognition as well as regular recognition. In respect of the respondent university, no such details are displayed in the list although the name of the university finds mention under the head "State of Nagaland". The said list displays the names of the universities as on 16.08.2011. As such, although the provisional recognition of the respondent university was only for one year w.e.f. 02.06.2008, in the list appended to the DEC's recognition policy, there is no endorsement to the effect that pursuant to the expiry of the provisional recognition, the respondent university has ceased to be recognized. It is also seen that the DEC along with Statute 28 of the IGNOU was abolished on 04.05.2013. This information is available also in the notification dated 17.06.2913 issued by the UGC, wherein it is stated that pursuant to the abolition of DEC along with Statute 28 of the IGNOU, the UGC will act as a regulator for higher education imparted through open and distance learning mode and till such time the norms for ODL are prepared and notified by the UGC, the guidelines on the minimum standards, as were prescribed under the Stature 28 of IGNOU, will be adopted/followed by the UGC.
1110. From the facts narrated above, it is apparent that pursuant to the non-extension of the provisional recognition in spite of several requests and representations made by the respondent university as well as by the State of Nagaland, no steps were taken by the DEC as well the UGC at the relevant point in time to decide as to whether the provisional recognition should be extended or regular recognition should be granted to the respondent university. Since the provisional recognition was granted by the DEC on 02.06.2008 for a period of one year; upon the expiry of the said provisional recognition, it was incumbent on the DEC and, subsequently the UGC as it had subsequently stepped into the shoes of DEC to take appropriate decision on the issue as to whether the respondent university's provisional recognition ought to be extended or discontinued. There is no provision under the relevant rules/regulations to suggest that if provisional recognition is not extended in spite of requests being made by an institution or university, it will nevertheless be construed to be deemed rejection of such requests made. No such provision under the regulation as well as the rules has been pointed out by the learned counsel for the UGC.
11. The learned Single Judge took the view that the rejection of the requests for granting recognition without providing adequate opportunity to the respondent university is violation of principles of natural justice. Accordingly, the learned Single Judge interfered with the impugned letter of non-extension of recognition issued by the UGC.
1212. Even under the UGC (Open and Distance Learning) Regulations, 2017 (hereinafter referred to as "Regulations of 2017"), which was subsequently notified by UGC, there is a provision for withdrawal of recognition in respect of universities or institutions which are conducting open and distance learning programmes. Regulation 3 of Regulations of 2017 provides for recognition of Higher Educational Institutions offering programmes in ODL mode. Regulation 4 provides for withdrawal of recognition. Regulation 5 provides for appeals to be preferred by institutions aggrieved by orders made under Regulation 3(4) or under Regulation 4. Under the regulations there is no provison for rejection or withdrawal of recognition by deeming fiction.
13. Under regulation 3, if an application is submitted by an institution with specific details, as provided under regulation 3(2), the same shall be processed by the UGC and if such application is found to be in order, then recognition should be granted under regulation 4 for a period of five years. Under Regulation 3(4)(ii), if any programme provided by an educational institution does not fulfill the requirements, then it may pass an order refusing recognition for reasons to be recorded in writing. Under Regulation 3(5), every order granting or refusing recognition to a higher educational institution shall be communicated in writing for appropriate action to the said educational institution and to the concerned State Government as well as the Central Government. Regulation 4 provides that if the UGC, on its own notion or on information received from any person or authority, and upon such inquiry 13 conducted comes to a conclusion that the recognition granted earlier ought to be withdrawn, it may pass such orders with the reasons recorded in writing. Regulation 5 provides remedy by way of appeal to be filed by any institution within a period of 30 days. The appeal is to be preferred to the Commission. Decision making authority cannot dispense with the requirement of the principles of natural justice on the ground that it will serve no purpose. It is only for the court to consider whether any purposes will be served, keeping in mind the prejudice caused1.
14. Further, it is seen that there is no dispute that the respondent university is a university created under the statute of the State Legislature of Nagaland. There is no explanation by the DEC or by the UGC as to why, pursuant to the provisional recognition granted to the respondent university, no inquiry was conducted as prescribed under the Act, read with the Regulations in spite of several representations being made for extension of the provisional recognition. There was no specific order issued by the DEC, as it then was, as well as by the UGC directing the respondent university not to proceed with courses on ODL platform without there being any specific order for extension. In fact, there is no clear communication either from the DEC or from the UGC pursuant to the expiry of the provisional recognition to the effect that there should be complete halt to all the programmes conducted by the respondent university under the ODL mode. This confusion led to a lot of hardships being caused to the student community as, in the 1 (2015) 8 SCC 519 14 absence of clear directions from the UGC or by the DEC, it was not possible for the respondent university to come to a conclusion that the programmes prescribed by the UGC under ODL mode cannot be imparted any further. There is albeit a fault on the part of the university that without having any clear instructions from the DEC or the UGC in respect of extension of its recognition, the university ought not to have proceeded with such courses on ODL mode. At this juncture, it is apposite to refer to the summary of the recommendations made by the expert committee and the same is extracted below:
"XII. Summary Over all comments about the institution:
1. Course design and development process followed by university is inadequate and insufficient.
2. The university lacks any linkages with industry/Govt./NGO etc. in the development & delivery of programmes.
3. The university is short of adequate qualified faculty as per UGC norms.
4. Hence the university is deficient in faculty development programmes in last 3 years.
5. Similarly it falls short of participating in faculty improvement programme in the area of distance education.
6. The university has inadequate infrastructure for the running its courses and to offer the programmes through distance education mode.
7. The university has inappropriate infrastructure and mechanism for delivery of course content/instruction, which are the back bone of ODL system.
8. The university does not have learner support system.
9. There is lack of transparency in receipt and expenditure of funds.
Recommendations of the Committee:
The expert committee has given suggestions as mentioned above and it feels that the matter of recognition may be considered on execution and realization of suggestions 15 made. When the suggestions are complied with, the university may apply afresh for recognition."
15. The learned Single Judge held that non-granting of extension to the provisional recognition of the respondent university was without any basis. While coming to the conclusion, the learned Single Judge had taken note of the fact that a Memorandum of Understanding (MOU) was executed between the UGC, AICTE and the DEC on 10.05.2007 for a period of three years, which stipulates that the Joint Committee will decide the composition of the expert committee which would visit the institutions to verify the norms and standards for the purpose of recognition, and the recommendations of the expert committee will be placed before the Joint Committee for consideration and approval. However, the said MOU was not extended after the period of three years. Therefore, the recommendations of the expert committee, which was constituted on 23.04.2012 when the MOU was non-existent, would have no legal basis. The findings arrived at by the learned Single Judge are that the respondent university ought to have been served with a notice and a copy of the expert committee report ought to have been furnished to the respondent university. While setting aside and quashing the impugned communication, the learned Single Judge has given liberty to the respondents (present writ appellant) to constitute an expert committee for inspection and looking into the aspect of grant of recognition to the respondent university.
16. As discussed above, since there appears to be a fault on the part of the DEC as well as the UGC in not deliberating upon the 16 extension of provisional recognition/grant of regular recognition to the respondent university within the time frame prescribed in spite of several representations and requests made by the university, we do not find the findings and directions of the learned Single Judge to be contrary to law so as to call for any interference in the matter. The question of the future of the student community, who in the meantime had undergone various courses in ODL mode, is also to be sympathetically considered. Learned Single Judge has merely directed for revisiting on the question of grant of recognition or extension of the provisional recognition by the expert committee to be constituted by the UGC. Even under the regulations, whereby any withdrawal of recognition is called for, an adequate opportunity of hearing is prescribed under Regulation 4 of the Regulations of 2017.
Therefore, in the fitness of things, we are not persuaded to interfere with the order passed by the learned Single Judge. The appellant is directed to carry out the evaluation process as directed by the learned Single Judge by constituting afresh an Expert Committee which will decide on recommendations required to be made after giving reasonable opportunity to the respondent university.
17. For the reasons discussed above, the writ appeal is dismissed. No order as to cost.
JUDGE CHIEF JUSTICE Comparing Assistant