Karnataka High Court
Karnataka State Open University vs University Grants Commission on 12 December, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2017
BEFORE:
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.NO.45881/2017 (EDN-RES)
BETWEEN:
KARNATAKA STATE OPEN UNIVERSITY
MUKTHAGANGOTHRI
MYSURU-570 006
REP.BY ITS REGISTRAR ..PETITIONER
(BY SRI RAJENDRA KUMAR SUNGAY T P., ADVOCATE)
AND:
UNIVERSITY GRANTS COMMISSION
BAHADUR SAFAR MARG,
NEW DELHI-110 002
REP. BY ITS SECRETARY ..RESPONDENT
(BY SRI ARVIND SHARMA, CGC FOR SRI KRISHNA S
DIXIT, ASG)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO:
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DIRECT THE RESPONDENT TO GRANT RECOGNITION TO
THE PETITIONER UNIVERSITY FOR THE ACADEMIC YEAR
2017-18 IN RESPECT OF THE IN-HOUSE
COURSES/PROGRAMMES DIRECTLY OFFERED BY IT, BY
CONSIDERING ITS APPLICATION DATED:19.12.2016 AND
04.02.2017 [VIDE ANNEXURES-R AND R-1 RESPECTIVELY]
UNDER THE PROVISIONS OF UGC ACT, BY EXCLUDING
THE ISSUE RELATING TO ACADEMIC COLLABORATIVE
INSTITUTIONS.
PERMIT THE PETITIONER-UNIVERSITY TO CONTINUE ITS
ACADEMIC PROGRAMMES FOR ITS IN-HOUSE COURSES IN
ACCORDANCE WITH THE PROVISIONS OF UGC ACT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING `B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This writ petition is listed for preliminary hearing `B' Group. With the consent of learned counsel for both sides, it is heard finally.
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2. The petitioner is Karnataka State Open University. It has sought a direction to the respondent-University Grants Commission (for the sake of brevity referred to as `UGC') to consider its application dated 19.12.2016 followed by a representation/application dated 04.02.2017 (Annexures-R and R-1 respectively) for the purpose of recognition of the petitioner-University for the academic year 2017-2018 for in-house courses/programmes to be offered by it directly under the provisions of University Grants Commission Act, 1956.
3. When the matter was listed on the last occasion, on hearing learned counsel for the petitioner and learned Central Government Counsel for the respondent, an order was passed permitting the representatives of the petitioner-University to appear 4 before the concerned officers of the respondent-UGC on 27.11.2017 at 11.00 a.m. and to make their submissions or clarify their requirements with the Commission. The Commission was directed to hear the representatives of the petitioner-University and to pass a speaking order in an expeditious manner preferably within a period of two weeks on the conclusion of submissions and clarification issued by the petitioner-University. The matter is listed today (12.12.2017) as ordered by this Court.
4. Learned counsel for the petitioner-University submits pursuant to the order dated 21.11.2017, representatives of the petitioner-University appeared before the respondent-UGC on 27.11.2017 and submitted a further representation on that day clarifying its position with regard to the type of courses to be offered by the University and also the 5 fact the said courses were to be in-house courses without having any collaboration with any other Private Educational Institution and in respect of only non-technical courses. The aforesaid plea of the petitioner-University was for grant of recognition for the current academic year 2017-2018 as the UGC had not considered its representations/applications till then. The said direction was made by this Court on the basis of the submissions of the learned counsel for respondent-UGC to the effect that there had been a decision taken not to grant recognition for the petitioner-University for the current academic year i.e., 2017-2018. But there had been no communication made to the petitioner-University in that regard. It is in the light of the aforesaid facts and submissions that a direction was issued in the aforesaid terms on 21.11.2017.
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5. Today, learned counsel for the petitioner has filed a memo enclosing a copy of the order dated 11.12.2017, stating that the recognition for the current academic year 2017-2018 cannot be granted by way of ex-post facto approval to any of its courses including in-house courses as requested by the petitioner-University and that the petitioner-University can apply online for recognition for the academic year 2018-2019. The memo enclosing the order is taken on record. Learned counsel for the petitioner submits that the said order is not a speaking order and the consideration made in paragraph (a) and (b) of the said order are wholly irrelevant to what was sought by the petitioner-University and the directions issued by this Court. He submits that the memo may be taken on record and the order dated 11.12.2017 may be quashed and a direction may be issued to grant recognition to the petitioner-University. 7
6. Per contra, learned counsel for respondent-UGC would submit that order dated 11.12.2017 may be in brief but nevertheless is a speaking order and the reason as to why recognition cannot be granted to the petitioner-University has been clearly delineated in the said order inasmuch as there cannot be any ex-post facto approval granted to any University in respect of in-house courses of the open University. He would submit that if at all petitioner is interested in seeking recognition for their courses it could be for the academic year 2018-2019 as stated in the said order.
7. Learned counsel for respondent-UGC also sought to explain the said order by submitting that the reason as to why the expression `ex-post facto approval' has been used in the order dated 11.12.2017 is because the current academic year 2017-2018 has already commenced and it is to end shortly and that at this 8 stage the UGC could not have granted any approval at this stage.
8. By way of reply, learned counsel for the petitioner submitted that UGC has been granting `ex- post facto approval' in respect of several Universities and it is only in the case of petitioner-University there has been a discrimination. Drawing my attention to memo dated 20.11.2017 enclosing certain documents, petitioner's counsel submitted that as per the updated list dated 16.02.2016 the respondent-UGC has approved programmes through Distance Education for the academic year 2015-2016 not just from June, 2015 but upto May 2016 which is even beyond the academic year 2015-2016. He submitted that as many as 106 Universities across the country have been granted recognition and as indicated from Sl.No.74 to 106 in the list, recognition has been 9 granted from 21.12.2015 upto 12.05.2016. He would submit that when the respondent-UGC has granted such `ex-post facto approval' insofar as 106 Universities are concerned, the petitioner-University cannot be discriminated against. It is also the case of the petitioner-University that there has been illegality and irregularity committed by the respondent-UGC in not granting recognition to the petitioner-University and he submits that a direction may be issued to respondent-UGC to grant recognition as has been done in respect of other 106 Universities. In this regard, petitioner's counsel made a categorical submission that the petitioner-University has not admitted any student for the academic year 2017- 2018 and therefore use of the expression `ex-post facto approval' by the respondent-UGC is a misnomer. 10
9. Having heard learned counsel for the respective parties, at the outset, it is noted petitioner-University made its application/representation for grant of recognition for the academic year 2017-2018 as per Annexure-R and Annexure-R1 respectively. There being no response from the respondent-UGC was constrained to file this writ petition on 06.10.2017. Pursuant to order passed by this Court on 21.11.2017 there has been a meeting of the representatives of the petitioner-University with the officer of the respondent-UGC on 27.11.2017. On that day the petitioner-University has clarified as to on what parameters the recognition is being sought. In fact even before this Court, learned counsel for petitioner has submitted that as far as academic year 2017- 2018 is concerned, the recognition is only for in-house course-non technical courses without having any collaboration with any Private Educational Institution. 11 The same parameters were submitted before the University Grants Commission on 27.11.2017, a copy of which is filed with a memo by the learned counsel for the petitioner. From the same, it is noted that the petitioner-University has stated that has not made any admission for the years 2015-2016 and 2016-2017 as a result of non-recognition by the respondent-UGC. Learned counsel for the petitioner has also submitted that no admissions have been made for the current academic year 2017-2018 and its resources are being wasted.
10. In the light of what had been stated by the petitioner-University, and on considering their submissions, order dated 11.12.2017 has been passed. The same reads as under:
No.F.7-4/2017(DEB-VI/I) 11th December, 2017 Prof.Shivalingaiah 12 Vice Chancellor Karnataka State Open University Mukthagangothri Mysore-570 006, Karnataka Sub:Speaking Order in compliance to the Order of the Hon'ble High Court of Karnataka Sir, This has reference to the meeting with the representatives of your University convened on 27th November, 2017 (Monday) at 11.00 a.m. in my Chamber in pursuance of order of the Hon'ble High Court of Karnataka. It was clarified during the meeting that:
(a)The Interface Meeting held on 06/02/2017 was based on the compliance report with all
annexures/letters of Karnataka State Open University (KSOU) including annexures R and R1. The concluding para of the Experts states that "According UGC recognition at this stage will essentially mean recognition to degrees not recognized by AICTE and also for students trained with very weak academic inputs and training. This will go against the provisions of UGC Act 1956, for maintaining minimum standard of Higher Education". The observations of the Experts were communicated to KSOU vide letter dated 20/11/2017 and it has been clearly mentioned 13 in the first para of letter that the meeting was held to examine the compliance report and other documents submitted by KSOU. KSOU was well aware that the Annexures R and R1 i.e., KSOU letters dated 19/12/2016 and 04.02.2017 were considered and deliberated in the Interface Meeting held on 06/02/2017.
(b)UGC vide its public notice dated 29/06/2017 informed all HEIs including KSOU that- "Those HEIs which have submitted applications/representations for their recognition/approval and/or addition of new programmes need to apply afresh as per the UGC (ODL) Regulations, 2017". These UGC (ODL) Regulations, 2017 were notified in the Gazette on 23/06/2017.
Further, UGC has decided to pass the following speaking order:
"After having heard the verbal submissions made by KSOU and after having examined the representation submitted to UGC, it is decided that ex-post facto approval cannot be granted to any of the course including in-house courses as requested by the KSOU now and the online proposal of KSOU for recognition of ODL courses for the academic year 2018-19 has been received and will be considered as per the UGC (ODL) Regulations 2017."
Yours faithfully, Sd/-
(P.K.Thakur) Secretary 14
11. The operative portion of that order states that ex-post facto approval cannot be granted to any of the courses including in-house courses as requested by Karnataka State Open University (petitioner- University). In the absence of there being any elaboration of the said expression which is open to several interpretations, learned counsel for the respondent-UGC sought to explain the said order having regard to his own understanding of the same and in an effort to sustain the said order. In this context it would be apposite to recall the celebrated decision of the Hon'ble Supreme Court in the case of Commissioner of Police, Bombay Vs Gordhandas Bhanji reported in AIR 1952 SC 16 wherein it has been stated that "Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what 15 they are expected to do or forbear from doing and exactly what authority is making the order." Further, Hon'ble Supreme Court has said that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
12. If the said decision is to be applied to the present case, it would at once become apparent, in the absence of there being any elaborate reasons the order dated 11.12.2017 cannot be explained in any 16 particular way and it can be interpreted in several ways. Further paragraphs (a) and (b) of the said order are wholly irrelevant to what had to be considered by UGC. Petitioner was not seeking any recognition of degrees for the earlier periods when there was no recognition granted by the UGC. Paragraph (b) pertains to seeking recognition under the UGC(ODL) Regulations, 2017 for the academic year 2018-2019 onwards, that was also not the subject matter of consideration having regard to the representation made by the petitioner. Thus, the reasoning of UGC in the operative portion does not conform to what has been considered in the earlier portion of the said order. More significantly the principle against `ex-post facto approval' which has been applied in order dated 11.12.2017 has not been followed by the UGC insofar as academic year 2015- 2016 is concerned wherein as many as 106 17 Universities were granted approval for that academic year right from June, 2015 upto May, 2016. It is not the case of respondent-UGC that those recognitions were given illegally or were not in accordance with law. Therefore, the principle against `ex-post facto approval' has not been applied by the UGC for the academic year 2015-2016 in respect of certain Universities and in respect of others where recognition had been withdrawn were re-granted subsequently even at the fag end of the academic year 2015-2016. In the circumstances, the reason assigned by UGC for not granting recognition or approval in the order dated 11.12.2017 is inconsistent with its earlier actions as referred to above and further without there being any elaboration of the same, it is wholly inapplicable so far as current academic year 2017-2018 is concerned particularly when the petitioner-University has not 18 made any admissions for the current academic year so as to seek an ex-post facto approval in that sense.
13. In the circumstances, bearing in mind the fact that UGC did not communicate or respond to the petitioner-University in time as far as representation for recognition for the academic year 2017-2018 is concerned and also the fact that UGC has itself granted ex-post facto approval or recognition in as many as 106 Universities for the academic year 2015- 2016, order dated 11.12.2017 passed by the respondent-UGC cannot be sustained. The petitioner- University cannot be at the receiving end on account of the defaults or lapses committed by UGC in not communicating to the petitioner about its decision in the matter in time. As already noted the representations were made by the petitioner as early as on 19.12.2016 and 04.02.2017 as far as current 19 academic year is concerned. Pursuant to the order dated 21.11.2017 although an opportunity was made available to UGC to consider the case of the petitioner-University and to pass a speaking order thereon, said direction has also not been complied with in as much as the order dated 11.12.2017 is not only cryptic but wholly against the consistent stand and action insofar as other 106 Universities across the country is concerned. Therefore the petitioner is entitled to contend that there has been discrimination as against it in the matter of grant of recognition is concerned for the current academic year particularly when the University has not admitted any student as yet and has sought for recognition prior to making any admission.
(a) The authorities such as University Grants Commission which is constituted pursuant to University Grants Commission Act, 1956, is made 20 responsible for such hallowed objects in the field of higher education, it is expected that the Commission acts in a very fair manner and in accordance with the object and purpose for which it has been constituted while dealing with the standard of university education in the country. The University Grants Commission is expected to ensure that its actions and orders are of a higher standard which cannot be faulted with as the Commission is rendering services in the realm of higher education and the Commission must ensure that its actions or orders would not be subjected to any scrutiny either at the hands of the Court or by other authorities. Having said so in this case, this Court is constrained to issue a positive direction to the UGC to grant parity to the petitioner-university as has been done by it in respect of other 106 universities.
(b) A perusal of the order dated 11.12.2017 it is noted that apart from alluding to ex-post facto 21 approval, no other reason has been cited or given in the said order for rejecting or non grant of recognition to the petitioner-university. In such circumstances, the following direction has been issued.
14. In the circumstances, respondent-UGC is directed to grant recognition to the petitioner- University on par with 106 Universities which have been granted recognition in the year 2015-16 without taking into consideration the time factor in granting said recognition and as no other reason has been cited for withholding the recognition.
15. The respondent-UGC shall pass an order to that effect within a period of two weeks from today.
16. In view of the aforesaid time bound direction the operative portion of this order to be made available to 22 the learned counsel for petitioner as well as learned counsel for respondent UGC.
Writ petition is allowed in the aforesaid terms. No costs.
Sd/-
JUDGE SBN