Madras High Court
Padmarajam College Of Mangement vs Bharathiar University on 17 July, 2019
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.07.2019
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
W.P.Nos.4958, 4992, 5083, 5090, 5095, 5096, 5120, 5146,
5153, 5176, 5178, 5416, 5420, 5721, 6790, 6796, 6799, 6800,
and 6804 of 2019
and
W.M.P.Nos.5797, 5803, 5807, 5810, 5845,
5856, 5864, 5887 and 5890 of 2019
W.P.No.5083 of 2019 :
Padmarajam College of Mangement,
Rep by its Chairman Mr.PA.Balan,
No.10, Kalpalam Road,
Goripalayam,
Madurai-625 002. .. Petitioner
Vs.
1. Bharathiar University
Rep by its Registrar,
Coimbatore 641 046.
2. The Director,
Centre for Participation Programme,
Bharathiar University,
Coimbatore-641 046.
3. The Controller of Examinations,
Bharathiar University,
Coimbatore - 641 046.
4. The Secretary,
University Grants Commission,
Bahadur Shah Zafar Marg,
New Delhi 110 002. *
http://www.judis.nic.in
2
* R4 suo motu impleaded vide order
dated 22.02.2019 made in WP No.5083/19 .. Respondents
***
Prayer : Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a Writ of Mandamus directing the
respondents to publish the 1st semester examinations time table for
the 1st year students admitted for the academic year 2018-2019 and
issue Registration Numbers and permit the 1st year students of the
petitioner-College of the year 2018-2019 to write the 1st semester
examinations and declare their results and permit the students to
continue and complete their course.
***
For Petitioner : Mr.S.R.Raghunathan
for R.M.Makesh Kumaravel
For Respondents : Ms.Narmadhasampath, AAG
1 to 3 Assisted by Mr.L.P.Shanmugasundaram
For Respondent 4 : Mr.P.R.Gopinath
COMMON ORDER
Since the issue involved in all these writ petitions is one and the same, all these writ petitions have been taken up for hearing together and disposed of by virtue of this common order.
2. The petitioner has filed W.P.No.5083 of 2019 seeking for a Mandamus, directing the respondents to publish the first semester http://www.judis.nic.in 3 examination time table for the first year students, who are admitted for the academic year 2018-2019 and issue Registration Numbers and permit them to write the said examinations for the academic year 2018-2019 and declare their results.
2.1. Similar is the prayer of the other petitioners, though the language applied in the prayer and the period and course for which they seek the relief may differ.
3. For the sake of convenience, the facts are culled out from the affidavit appended to W.P.No.5083 of 2019.
4. According to the petitioner, the first respondent-University was established by the Bharathiar University Act, 1981 enacted by the Legislature of Tamil Nadu and approved by the University Grants Commission (in short "UGC). In the year 2006-2007, the first respondent-University initiated new programmes under "Centre for Participatory Programme" (CPP) and "Centre for Collaboration of Industries and Institutions" (CCII) through University-Private Partnership System to offer industry oriented courses in Diploma, P.G. Diploma, UG and PG degree level. The first respondent approved the petitioner-College as institutes under CPP to offer BBA and B.Com. http://www.judis.nic.in 4 (Professional Accounting) courses for the academic years 2012-2013, 2013-2014 and 2014-2015, for which, a Memorandum of Understanding (MoU) was entered into between them on 08.08.2012 and the petitioner-College was allotted the Centre Code TN 121188. The first respondent-University had approved several institutions like the petitioner-College having all required infrastructural facilities such as class rooms, laboratory, equipments, analytical tools and aids, library, faculty, placement cells etc., as per the norms prescribed by the first respondent-University to offer the courses, for which, specific MoU had been entered into between the first respondent-University and the approved institutions. The said MoU had been renewed for further period of three years from 08.08.2015 to 07.08.2018.
5. The application of the students to each of the courses as per the students strength prescribed by the first respondent-University, had been received and forwarded to the University along with tuition fees and other fees collected from the students, while retaining a part of fees with the institute to meet the expenses of faculty and other infrastructures as per the said MoU. Thereafter, the first respondent- University admits the students and issues Registration Number. The classes are conducted by the institution based on the syllabus and http://www.judis.nic.in 5 curriculum as prescribed by the University. The said CPP and CCII programmes are regular day courses and the students have to secure necessary attendance to write the semester examinations in both theory and practical examinations along with class-room tests, assignments, seminar etc. The examination fees collected from the students have also been remitted to the University. The University conducts theory examinations and issues hall ticket to the students, evaluate the answer sheets, declares the results and issues mark statements, provisional certificates and later degree certificates. Thus, the Courses under CPP and CCII are conducted as regular day-time courses and they are not distance education system, though the said CPP and CCII function as a unit under the School of Distance Education of the first respondent-University.
6. While so, according to the petitioner, on 23.08.2013, the UGC had passed certain regulations prescribing the territorial jurisdiction for offering courses under Distance Education system through correspondence courses and conduct seminars and accordingly, the jurisdiction of the State established Universities had been limited to the territory of the concerned State. As a consequence, the establishment of Distance Education Study Centres and franchising of http://www.judis.nic.in 6 study centres to facilitate Distance education system outside the State, had been banned. However, the first respondent-University filed a Writ Petition in W.P.No.37760 of 2015 before this Court, challenging the above direction of the UGC and this Court had granted an order of interim stay and the same is still in force. It is stated that the said Colleges and Institutes are approved under CPP and CCII programmes only to conduct regular classes and courses. It is further stated that as these courses though function as a Unit in the University under the School of Distance Education, the actual courses offered is only for regular day classes. The said direction banning the study centres outside the State only applies to the distance education system and do not apply to the colleges and institutions approved under CPP and CCII programmes.
7. The Association of Self Financing Arts, Science and Management Colleges of Tamil Nadu, whic has been impleaded as the third respondent in W.P.No.4958 of 2019, filed a Writ Petition in W.P.26088 of 2016 before this Court seeking for a direction to the University not to grant affiliation/sign MoU to conduct "Distance Education Centre for Participatory On-line programme", Center for Participatory Programme and Centre for Collaboration of Industries and http://www.judis.nic.in 7 Institutions through partner / franchise institutes for the academic year 2016-2017. Admittedly, the petitioner-College herein was not a party to the said proceedings. The petitioner therein had filed the said Writ Petition to get an order against the petitioner herein in their absence. Though this Court had granted the interim stay against the direction of the UGC as stated supra, the University had filed an affidavit on 08.12.2017, undertaking that it will not operate distance education centres and will not grant affiliation and recognition relating to distance education to conduct classes/courses outside the State of Tamil Nadu from the academic year 2018-2019. Therefore, it is contended that the respondent-University had given an undertaking only not to conduct distance education and operation of distance education study centres outside the State of Tamil Nadu. This undertaking did not affect the CPP and the CCII, as these programmes were offered only within the State of Tamil Nadu.
8. It is also stated that Writ Petitions in W.P.No.37760 and 26088 of 2016 were clubbed together and this Court had passed an order on 08.12.2017, which reads as follows:
"restraining the Bharathiar University from
operating the distance education study
centres/franchises and grant of affiliation and
http://www.judis.nic.in
8
recognition relating to distance education to conduct outside the Tamil Nadu from the academic year 2018- 2019 onwards. It is made clear new admissions cannot be made from the academic year 2018-2019 and only those students who already joined alone would be allowed to complete their course."
9. According to the petitioner-College, the above said order only restrained the operation of distance education study centres and franchisees outside the State of Tamil Nadu and it did not restrain the operation of CPP and CCII, that too, functioning within the State of Tamil Nadu.
10. In view of the above order, the Director, School of Distance Education of the first respondent-University had issued a circular on 05.05.2018 in No.BU/SDE/All Study Centre/Approval withdrawn /Notice/2018 containing the following direction :-
"the SDE Centres outside State of Tamil Nadu and in foreign countries to stop the new admissions from the calender year 2018 and onwards.............new centres and fresh admission of students outside Tamil Nadu be not permitted"".
http://www.judis.nic.in 9
11. Further Order No.BU/RR/080618/2018 dated 31.07.2018 was issued to all the Study Centres of the Open and Distance Learning directing, "not to admit students from the academic year 2018 onwards as per UGC (Open and Distance Learning) Regulations, 2017 and to close down the private study centres".
12. The first respondent-University also issued the Circular in No.BU/CPOP, CPP & CCII / Centres-Approval withdrawn/2018 dated 15.05.2008 directing the "CPP and CCII functioning outside the State of Tamil Nadu to stop admission from the calender year 2018 ....... ... new centres and fresh admission of students outside Tamil Nadu be not permitted.".
13. According to the petitioner, all the above circulars are only with respect to the Distance Education Study Centres, which are functioning outside the Tamil Nadu. Therefore, the same did not affect the functioning of the institutions under CPP and CCII within the State of Tamil Nadu.
14. While so, the College/Institution applied for renewal of MoU for extension of approval from the year 2018 to offer the courses http://www.judis.nic.in 10 under CPP and CCII, which was delayed by the first respondent- University. Hence, they filed a Writ Petition in W.P.No.14406 of 2018 etc., batch before this Court seeking to forbear the respondent - University from cancelling the MoU existing upto 2018 and to renew the MoU from the year 2018 and consequently, direct the respondent to permit the petitioner institute to admit the students in BBA and B.Com, (Professional Accounting) courses for the academic year 2018- 2019. Considering the undertaking earlier given by the first respondent-University in W.P.No.20688 of 2016, this Court passed the common order on 24.07.2018 in the said W.P.No.14406 of 2018 etc., batch, holding that the guidelines issued by the UGC can only be prospective and it cannot nullify the MoU already entered into between the parties and clarified that the Study Centres would not be permitted to operate outside the State of Tamil Nadu.
15. As the earlier MoU entered into between the College and the first respondent-University was subsisting upto August 2018, the College admitted the students for the academic year 2018-2019 and has also forwarded the letter dated 03.08.2018 to the first respondent furnishing the list of 19 students admitted in B.Com (Professional Accounting) along with tuition fees. In the meanwhile, the first http://www.judis.nic.in 11 respondent-University had issued an order dated 03.12.2018 addressed to all the centres of CPP and CCII stating that the University's Special Syndicate in its 308th meeting held on 28.11.2018, resolved to permit all centres of CPP /CCII with valid MoU for the first year admission of the 2018-2019 Academic year alone.
16. In the meanwhile, as the examinations were scheduled from 09.01.2019, the applications along with prescribed fees with internal assessment mark statements were sent to the University for issuing Registration numbers to the students of the Colleges / Institutes admitted under CPP/CCII for the academic year 2018-2019, but however, the students are prevented from remitting the examination fees and write the first semester examinations. While so, the first respondent-University has sent a letter dated 05.02.2019 communicating that the examinations were only for the students having arrears of first semester subjects and the time table was not published for the regular 1st year students of the academic year 2018- 2019. Therefore, a representation was sent by the petitioner-College on 07.02.2019 to the respondents herein with a request to permit the 1st year students of the academic year 2018-2019 to write their 1st semester examinations, which were scheduled to be held from http://www.judis.nic.in 12 February 2019. But, there was no response from the University. Though the admission of the students for the academic year 2018- 2019 is valid as per the order dated 03.12.2018 issued by the first respondent-University, the University did not permit the first year students to appear for the first semester examinations. Therefore, the petitioner-College has moved this Court seeking a direction to the University to issue Registration numbers and publish the first semester examinations time table for regular students admitted in the academic year 2018-2019 under CPP and CII and permit the students to appear for the first semester examinations.
17. As stated above, the petitioners in all writ petitions also sought similar relief of direction to the respondent University to extend their MOU and permit the students to write the examination and declare the results, etc.
18. The Writ Petitions were resisted by the University contending, inter alia, that the Bharathiar University offered various courses under the participatory programmes utilising the faculties and facilities available in the institution from the academic year 2011-2012 and also entered into an MoU between them for a period of three years http://www.judis.nic.in 13 and it was periodically renewed. The UGC had directed the University to stop/withdraw the application/recognition granted to the private institutions running courses, failing which, action will be taken against the University as per the UGC Act, 1956. Challenging the same, the first respondent-University had filed the said Writ Petition in W.P.No.37760 of 2015. The Association of Self Financing Arts Science and Management College of Tamil Nadu also filed the said Writ Petition in W.P.No.26088 of 2016 directing the University not to grant affiliation/sign MOU to conduct Distance Education. The Bharathiar University had filed an Undertaking that they will not operate Distance Education Study Centres outside the Tamil Nadu.
19. It is further stated that in the 298th Syndicate meeting of the Bharathiar University held on 13.09.2017, it was resolved that function of School of Distance Education centres outside the State of Tamil Nadu and in few foreign countries, have been instructed to stop the new admissions from the calender year 2018 onwards and that new centres and fresh admissions of students outside the Tamil Nadu was also not permitted. It is also stated that in the 304th Syndicate meeting, it was resolved that all the Study Centres outside the Tamil Nadu would be closed. It is submitted that an official communication http://www.judis.nic.in 14 was sent to all the study centres instructing them to stop new admissions. A few of the study centres filed the above said Writ Petition Nos.14406 to 14410 of 2018, 13036 of 2018, 13037/2018, 13039/2018 and 16256 of 2018 seeking a direction to the University to renew the MoU for a period of three years. This Court, on 24.07.2018, passed an order in the said batch of Writ Petitions, as per which, the University had given an undertaking that it will not operate the Distance Education Study Centres or grant affiliation and recognition relating to Distance Education to be conducted outside the State of Tamilnadu from the academic year 2018-2019. The undertaking given by the University was only with respect to the Distance Education conducted by the franchisees or outside the Tamil Nadu.
20. The question to be determined is whether the first respondent University can be permitted to have franchise within the State or within the country, i.e., outside the State, and also outside the country.
21. Before delving into the said question, it is relevant to take note of the fact that the Central Government enacted the University http://www.judis.nic.in 15 Grants Commission, Act, 1956 (in short, "UGC Act") to make provision for the co-ordination and determination of standards in Universities. Chapter III of the UGC Act speaks about the functions of the Commission. Section 26 of the said Act empowers the UGC to make regulations consistent with the Act. In exercise of such power, i.e., Section 26(1)(f) of the UGC Act, the UGC made the University grants Commission (the minimum standards of instructions for the grant of the first degree through non-formal/distance education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Science) Regulations, 1985. The said Regulations prescribes certain regulations for admission of students, programme of study, examination, teachers, etc., which have to be complied with the Universities.
22. Though the UGC is the regulatory body, several institutions including State Universities and private universities are offering courses without following the standards laid down by the UCG. The takers of the degrees do not seem to understand that these degrees without the standards prescribed by the UGC are of no value. In the absence of required teaching staff with prescribed qualification, young students are misled to enroll themselves in courses, which do not have http://www.judis.nic.in 16 a prescribed syllabus universally recognizable. Such kind of education offered would deteriorate the standard of education and in turn, the entire education system will become sub-standard.
23.Admittedly, a considerable percentage of the gross enrollment in higher education is through Distance education. Those students unable to join the regular courses due to several reasons take up only the Distance Education mode, which is, indeed, a great boon to those, who want to have further qualification and enhance their professional knowledge. The question of Distance Education conducted by the University is not dealt with here.
24. It is contended that the UGC had issued a public notice on course/study centres/off campus and territorial jurisdiction of universities on 27.06.2013 in No.F-27-1/2012 (CPP-II), of which, clause (d) is as follows :
“(d) No University, whether central, state, private or deemed, can offer its programmes through franchising arrangement with private coaching institutions even for the purpose of conducting courses through distance mode.” The above notification further indicates the do's and dont's on the functioning of the Universities including distance education.
http://www.judis.nic.in 17 24.1. Even earlier, the Chairman of the UGC vide letter dated 09.08.2001 directed all the Universities in the country to stop franchising their degree through private agencies/establishments with immediate effect, of-course, with a rider to safeguard the interest of the students, those who had already been erolled at that time and awarded degrees under the franchise programmes. It was made clear that no new enrollment of students was permitted thereafter.
24.2. On 13.05.2013, a Joint Committee Meeting of Chairpersons of UGC/AICTE and the Distance Educational Council (DEC) was convened, which, inter alia, reiterated the above directions. A further direction was issued to all the Vice Chancellors of the Universities in the country to limit their distance education programmes to their respective neighbourhood or at the most within the State.
24.3. A communication dated 16.04.2009 addressed by the Secretary to the UGC to all the State Government is placed before this Court to impress upon the fact that the State Governments have already been requested to amend the Universities Acts in accordance with the observations made by the Hon'ble Apex Court in the case of Prof.Yashpal V. State of Chattisgarh, 2005 (5) SCC 420, and to stop all the Universities from operating beyond the territorial http://www.judis.nic.in 18 jurisdiction of the State, including their franchisees.
24.4. Similar directions were issued on 15.06.2009 to the Vice Chancellors of all the Universities.
24.5. The Distance Education Council of the IGNOU, which was the custodian for regulatory functions with regard to for Open and Distance Education (ODL) in higher education till the same was dissolved and the regulatory powers are vested with the UGC vide notification dated 29.12.2012 issued by the Ministry of Human Resources Department, Department of Higher Education, Government of India, also issued similar directions in the year 2012. The Distance Education Bureau of the UGC is yet to frame new regulations and till such time, the guidelines of the DEC are in force.
24.6. As stated above, UGC from time to time issues public notices. A reading of the said public notices would indicate that the UGC wanted to stop the misleading advertisements to maintain the standard of education. Excepting the above said notices and similar circulars issued by the UGC, there is no effective mechanism to the whole country on franchising or Distance Education.
24.7. In fact, the respondent University was addressed with a communication by the UGC on 20.08.2015 not to admit any student for ODL (Open and Distance Learning) programmes during the http://www.judis.nic.in 19 academic year 2015-16 and they will be held responsible, if any student is admitted without getting the requisite prior approval from the UGC.
25. At this juncture, it is relevant to note that the Hon'ble Supreme Court in the famous judgment in Prof.Yashpal V. State of Chattisgarh, 2005 (5) SCC 420, considered the issue of extra-
territorial operation of state enactment in the form of establishment of off-campus centres franchise and study centres and held that the Parliament alone is competent in making laws. In the said judgment, it was held as follows :
"33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of universities as a legislative head being in the State List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which Parliament alone is competent. It is the responsibility of Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.
44. As shown earlier, a university is a whole body of teachers and scholars engaged at a particular place in giving and http://www.judis.nic.in 20 receiving instruction in higher branches of learning; and as such persons associated together as a society or corporate body, with definite organisation and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, building and other property belonging to such body. Other necessary attributes of a university are plurality of teachers teaching more than one higher faculties and other facilities for imparting instruction and research, provision for residence and must have certain standard of instruction providing for graduate and postgraduate levels of study. It presupposes existence of a campus, classrooms, lecture theatres, libraries, laboratories, offices, besides some playgrounds and also sports facility for overall development of personality of the students. However, under the provisions of the impugned Act, a proposal which is on paper and merely gives some kind of a plan or scheme to be done in future is notified as a university. When the Constitution has conferred power on the State to legislate on incorporation of university, any Act providing for establishment of the university must make such provisions that only an institution in the sense of university as it is generally understood with all the infrastructural facilities, where teaching and research on a wide range of subjects and of a particular level are actually done, acquires the status of a university. The impugned Act does not at all establish a university, yet by issuing a notification conferring the legal status of a university to a project report (which is on paper only) bestows upon it a right to confer a degree, which right it gets by virtue of Section 22 of the UGC Act. The manner in which a university is notified by issuance of a gazette notification under Section 5 and conferment of a juristic personality under Section 6 of the Act is clearly contrary to the constitutional scheme and is not contemplated by Article 246 of the Constitution.
http://www.judis.nic.in 21
45. The State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also generally for universities under Entry 25 of List III. The subject “university” as a legislative head must be interpreted in the same manner as it is generally or commonly understood, namely, with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra vires, being a fraud on the Constitution.
46. Entry 66 which deals with coordination and determination of standard in institutions for higher education or research and scientific and technical institutions is in the Union List and Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (see Prem Chand Jain v. R.K. Chhabra [(1984) 2 SCC 302 : 1984 SCC (Cri) 233 :
(1984) 2 SCR 883] and Osmania University Teachers' Assn.v. State of A.P. [(1987) 4 SCC 671] ). The Act has been enacted to ensure that there is coordination and determination of standards in universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various universities in the country. In order to achieve the aforesaid objectives, the role of UGC comes at the http://www.judis.nic.in 22 threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like classrooms, libraries, laboratories, well-equipped teaching staff of requisite calibre and a proper student-teacher ratio. For this purpose, the Central Government has made a number of rules in exercise of powers conferred by Section 25 of the UGC Act and the Commission has also made regulations in exercise of power conferred by Section 26 of the UGC Act and to mention a few, the UGC Inspection of Universities Rules, 1960, the UGC Regulations, 1985 Regarding the Minimum Standards of Instructions for the Grant of the First Degree, UGC Regulations, 1991 Regarding Minimum Qualifications for Appointment of Teachers in Universities and Colleges, etc. UGC with the approval of the Central Government and exercising power under Section 22(3) of the UGC Act has issued a schedule of degrees which may be awarded by the universities. The impugned Act which enables a proposal on paper only to be notified as a university and thereby conferring the power upon such university under Section 22 of the UGC Act to confer degrees has the effect of completely stultifying the functioning of the University Grants Commission insofar as these universities are concerned. Such incorporation of a university makes it impossible for UGC to perform its duties and responsibilities of ensuring coordination and determination of standards. In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them."
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26. The above judgment very clearly reiterated that it is only the Parliament that is competent to ensure the maintenance of proper standards in the higher education or research throughout the country through UGC.
27. The State Universities Acts provide for territorial jurisdiction. Any institution situated beyond the territorial limits of the University cannot be affiliated to the University. The respondent University is clearly prohibited to operate beyond the territorial limits. At this juncture, it is relevant to note that Section 2(q) of the Bharathiar University Act, 1981, speaks about “University Area”, according to which, university area means the area to which the Act extends under sub-section (2) of Section 1. Section 1(2) prescribes that it extends to the area comprising the districts of Coimbatore, Nilgiris and Periyar (now Erode) in the State of Tamil Nadu.
28. It is apt to quote the following paragraphs from the judgment of the Hon'ble Apex in Kurmanchal Institute of Degree & Diploma and Others V. Chancellor, M.J.P. Rohilkhand University and Others, (2007) 6 SCC 35 :
18. Although we are inclined to agree with the learned http://www.judis.nic.in 24 counsel appearing on behalf of the appellants that for all intent and purport the requirements of law for making an ordinance by the Executive Council of the University had been done pursuant whereto new courses could be opened, we are, however, unable to persuade ourselves to accept the contention that such study centres should be permitted to be operated beyond the territorial jurisdiction of the University. Section 5 of the Act clearly states in regard to the territorial jurisdiction of the University. In terms of the Schedule appended to the Act, the territorial jurisdiction of the University is confined only to seven districts, Nainital not being one of them. Each university in the country which is recognised under the University Grants Commission Act must have their own territorial jurisdiction save and except for the Central Universities or specified in the legislative or parliamentary Act.
19. The submission of the learned counsel that for the purpose of running a distance education course, extraterritorial activities must be carried out may not be entirely correct. It is one thing to say that the university takes recourse to the correspondence courses for conferring degrees or diplomas but it would be another thing to say that study centres would be permitted to operate which requires close supervision of the university. In a study centre, teachers are appointed, practical classes are held and all other amenities which are required to be provided for running a full-fledged institution or college are provided. Such an establishment, in our opinion, although named as a study centre, and despite the fact that the course of study and other study materials are supplied by the university cannot be permitted to be established beyond the territorial jurisdiction of the university. Nainital is outside the territorial jurisdiction of the University. In fact it is not situated in the State of U.P. and, thus, is beyond the provisions of the http://www.judis.nic.in 25 Act.
20. The submission of the learned counsel that the UGC Regulations, 1985 provide for study centres of this nature cannot be countenanced. The UGC Regulations being a subordinate legislation must be read with the principal Act. The subordinate legislation will be ultra vires if it contravenes the provisions of the principal Act. (See Vasu Dev Singh v. Union of India, (2006) 12 SCC 753. A statutory authority, it is well known, must act within the four corners of the statute. A fortiori it has to operate within the boundaries of the territories within which it is to operate under the statute. Such territorial jurisdiction of the university must be maintained as otherwise chaos would be created. If distance education of such a nature is to be encouraged, the only course would be to suitably amend the provisions of the Act."
29. The First Bench of the High Court of Kerala in Godwiin Samraj D.P. V. M.Abdul Salam, MANU/KE/2182/2014, while dealing with a Public Interest Litigation petition filed by one of the members of Senate of the University of Calicut with a social activist issued directions for closure of the off-shores Centres situate overseas operating on the basis of the permission/approval granted by the Calicut University. A further direction was issued to take immediate action for closing off-shore Centres, failing which liberty was granted to the UGC to initiate proceedings for withdrawal of the recognition of the University for running course by Distance Education as per the http://www.judis.nic.in 26 conditions regarding territorial jurisdiction mentioned in the letter dated 04.06.2014 already issued to the Vice Chancellor of the Calicut University.
30. It is relevant to note that the First Bench of the Kerala High Court in the said judgment held as follows :
"26. From the above materials on record it is evidently clear that both erstwhile Distance Education Council and University Grant Commission repeatedly directed all Universities not to run any Study Centre beyond its territorial jurisdiction. Universities were directed to close down its Study Centres which were opened beyond territorial limits as well as Overseas under
the Distance Education Programme. Thus there is clear direction by the University Grant Commission for directing all Universities to operate under the territorial jurisdiction. Directions issued by the University Grant Commission are in exercise of its powers under the UGC Act, 1956 and are binding on the State Universities. The UGC in its letter dated 21.4.2014 has directed the Mahatma Gandhi University to close down all off-shore study centres offering programmes through Distance mode.
27. From the above it is clear that the Calicut University is running its off-campus Centres overseas against the statutory provisions of the Act as well as against the express directions issued by the Distance Education Council and the UGC as noted above. That apart, as per the letter addressed to the Vice Chancellor of the Calicut University dated 04.06.2014 (Annexure 7 (c) the recognition of the Calicut University for functioning, through opening a Distance Education Centre is subject to the conditions mentioned which we have already extracted.
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28. Respondents 1 to 4 are clearly acting beyond their powers in permitting and running of Study Centres Overseas for Distance Education which are referred as programme centres as noted above against the provisions of the Act as well as against the direction of the University Grant Commission and the Distance Education Council. The said action is beyond their jurisdiction and has to be condemned. The University has to close the Centre Overseas immediately failing which the UGC may take action for withdrawing recognition of their distance education course.
29. Petitioners in the Writ Petition have also made a prayer to remove respondent Nos. 1 to 4 from the respective posts.
30. We are of the view that under the Act it is the Chancellor who is empowered to take such action. We thus have not examined the allegations made in the Writ Petition nor are expressing any opinion in that regard. It is for the Chancellor under the Act to take appropriate action, if any."
31. It is relevant to note that the petitioners have produced the copies of the MOUs/Renewal of MOUs entered with the University. The following table throw light on the issue :
Sl. W.P.No. Original 1st renewal 2nd renewal, Valid till No. MOU on if any, on entered on 1 4958/19 22.02.2012 19.02.2015 07.09.2017 21.02.2021 2 4992/19 20.08.2015 -- -- 19.08.2018 3 5083/19 08.08.2012 24.11.2015 -- 07.08.2018 4 5090/19 31.10.2012 09.09.2015 -- 30.10.2018 5 5095/19 03.04.2017 -- -- April 2020 6 5096/19 23.06.2017 -- -- May 2019 7 5120/19 04.05.2012 Not given -- --
http://www.judis.nic.in 28 Sl. W.P.No. Original 1st renewal 2nd renewal, Valid till No. MOU on if any, on entered on 8 5146/19 02.02.2011 Not given Not given August 2018 9 5153/19 30.09.2016 -- -- 29.09.2018 10 5176/19 23.08.2017 -- -- 22.08.2020 11 5178/19 22.01.2010 Not given 07.03.2016 21.01.2019 12 5416/19 03.04.2017 -- -- 02.04.2019 13 5420/19 10.05.2011 10.04.2014 04.04.2017 09.05.2020 14 5721/19 17.08.2016 -- -- 16.08.2019 15 6790/19 24.04.2017 -- -- 23.04.2020 16 6796/19 05.07.2011 Not given 17.11.2017 04.07.2020 17 6799/19 13.04.2017 -- -- March 2019 18 6800/19 22.07.2010 Not given 29.06.2016 21.07.2019 19 6804/19 03.05.2017 -- -- 02.05.2020
32. The petitioners institutes in W.P.Nos.5083, 5090, 5153 of 2019 are stationed at Madurai. The petitioner in W.P.No.4992 of 2019 is running the institute at Thoothukudi and the some of the petitioners are stationed at Chennai, Coimbatore, Salem, Erode and Krishnagiri. The petitioners in W.P.Nos.5420, 5721, 6796, 6799, 6800 and 6804 of 2019 are running institutes in the State of Kerala. If the places of petitioners' institutes, which are indeed located at various places other than the places defined within “University Area” under the Bharathiar University Act, are taken into account with the touchstone of the principle stated in the judgment of the Apex Court in Kurmanchal Institute of Degree & Diploma and Others, the petitioner institutions are not entitled for any relief in these writ petitions. It is http://www.judis.nic.in 29 for the respondent University to abide by the directions issued by the UGC in the communication dated 20.08.2015.
33. Further, in view of the letter of the communications and public notices issued by the UGC to both the Government and the Vice Chancellors of all the Universities in the country and also the communication addressed by the UGC to the respondent University on 20.08.2015, the MOUs cannot be acted upon and the respondent University should have the responsibility to adhere to the instructions contained therein, so also whatever directions given by the UGC. It is to be stated that the responsibility of the UGC also does not end with issuing Circulars and Public Notices, but it extends to the follow up action also, as the same concerns with the life of the students. But, in the instant issue, the UGC, though issued Circulars and public notices, failed to take follow up action with the Universities. The Universities also, unmindful of the circulars, emboldened to renew the franchise MOUs with institutions, like the petitioners. In the result, the plight of the students, who are in the mid-way of their academic courses, are stranded. The UGC, which also had failed to follow the issue with the University, which imparts the higher education, should have more responsibility in its deeds. It is also apathetic that the autonomous http://www.judis.nic.in 30 body under the Government of India – UGC had also turned blind eye to the misdeeds of the University.
34. From the above, it is clear that the respondent/University has been acting beyond their powers in allowing the study centres outside its territorial jurisdiction either within the state/country or overseas and the same is not permissible. Thus, the petitioners cannot continue to run the institutes as franchise of the respondent- University, unless and otherwise, it is established that they had a sanction of the Chancellor for setting up the institutes. Therefore, the MOUs produced by the petitioner institutions are of no avail to the petitioners and thus, the petitioners cannot seek for a Mandamus for continuing the education of the students.
35. This Court is of the view that while declaring that the MOUs entered into by the University with these petitioners are beyond the scope of the Circular and also the University Act, it is for the UGC to decide on the plight of the students, who may not be able to complete the course, as promised by the petitioners. It is also open to the students to take action in the manner known to law to deal with the issue.
http://www.judis.nic.in 31
36. The irresistible conclusion of the foregoing discussion would be that the petitioners have no merit to maintain these writ petitions. Accordingly, these writ petitions are liable to be dismissed.
37. Accordingly, excepting the above directions and observations, these writ petitions are dismissed as devoid of merits. No costs.
17.07.2019
Index : Yes/No
Internet : Yes
srn/gg
To
1. The Registrar,
Bharathiar University
Coimbatore 641 046.
2. The Director,
Centre for Participation Programme,
Bharathiar University,
Coimbatore-641 046.
3. The Controller of Examinations,
Bharathiar University,
Coimbatore - 641 046.
4. The Secretary,
University Grants Commission,
Bahadur Shah Zafar Marg,
New Delhi 110 002
http://www.judis.nic.in
32
PUSHPA SATHYANARAYANA, J.
gg
W.P.Nos.4958, 4992, 5083, 5090,
5095, 5096, 5120, 5146, 5153, 5176,
5178, 5416, 5420, 5721, 6790, 6796,
6799, 6800 and 6804 of 2019
17.07.2019
http://www.judis.nic.in
33
W.M.P.No.10804 of 2019
in W.P.No.4958 of 2019
PUSHPA SATHYANARAYANA, J.
The Association of Self Financing Arts, Science and Management Colleges of Tamil Nadu represented by its Secretary is the petitioner herein seeking to implead themselves as the party respondent in W.P.No.4958 of 2019.
2. The petitioner herein is the original writ petitioner in W.P.No.26088 of 2016, which challenged the action of the respondent University in franchising the higher education. In the said writ petition, they have impleaded the Distance Education Bureau of the UGC as the party. The said writ petition is pending.
3. It is open to the petitioner herein to workout their remedies in W.P.No.26088 of 2016 and their presence is not necessary for the purpose of the writ petition.
4. Accordingly, this miscellaneous petition is dismissed.
17.07.2019 gg http://www.judis.nic.in 34 PUSHPA SATHYANARAYANA, J.
gg W.M.P.No.10804 of 2019 in W.P.No.4958 of 2019 17.07.2019 http://www.judis.nic.in