Karnataka High Court
Jagadeesh M vs University Of Tumkur on 25 November, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 25th DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.17151-17152 OF 2013 (EDN-RES)
BETWEEN:
1. Jagadeesh .M,
Son of Mallesharadhya,
Aged about 29 years,
Residing at Gubbi Hosahalli,
Gubbi, Tumkur - 572 101.
2. Suresh K.V.,
Son of Dodda Basanna,
Aged about 31 years,
Residing at Konasagara Village,
Taluk: Molakalmuru,
District: Chitradurga - 577 501.
...PETITIONERS
(By Shri. R.L.Patil, Advocate)
AND:
1. University of Tumkur,
Tumkur - 572 101,
Represented by
its Registrar.
2
2. The Registrar,
Examination and Evaluation,
University of Tumkur,
Tumkur - 572 101.
...RESPONDENTS
(By Shri. M.N. Prasanna, Advocate)
*****
These Writ Petitions filed under Article 226 of the
Constitution of India praying to quash the regulation issued by
the respondent - University where by it makes the course of
Ph.D. to be undertaken only in English, vide Annexure-G and
direct the respondent to conduct the examination of pre Ph.D.
course scheduled to be held on 20 and 21st April 2013 in
Kannada Medium.
These Writ Petitions coming on for Preliminary Hearing
in 'B' Group this day, the court made the following:
ORDER
Heard the learned counsel for the petitioners.
2. The petitioners claim to be from a rural background and claim to have studied from I Standard to X Standard in Kannada medium and possess a rural certificate. Thereafter, they have also obtained their degrees and M.A. in Kannada 3 medium and both the petitioners, desirous of acquiring a Doctorate of Sociology, had applied to the respondent - University to pursue their Ph.D., which is a course for three years. The respondent - University conducts entrance examination to screen post graduation students to ascertain their qualification. The entrance examination was conducted during March-April 2011 to 33 students who appeared for the examination. The petitioners were also among those students. It is their case that the entrance examination was conducted in the Kannada medium and that the petitioners were declared passed at the said examination and were referred to Vedavyasa Research Centre, Srinikethan Trust, Subramanya, Sullia, for further training and they had entered into an agreement with the Trust by virtue of an agreement between the Trust and the University. During March 2013, the course work of P.Hd. was notified to be held on 20th and 21st of April 2013 and the petitioners had paid their pre Ph.D. examination fee. But, when the petitioners went to pay the examination fee, they were told 4 that the respondent - University would be conducting the Pre Ph.D. examination in English only in terms of the Regulations governing the University. Their request that they may be permitted to take the examination in any other language was denied. It is that which is the subject matter of the present writ petitions.
3. The learned counsel for the petitioners would submit that there are other Universities such as the Mysore University, Bangalore University, the Karnataka University, Mangalore University, Kuvempu University as well as the Gulbarga University which are the several Universities in the State which conduct courses with a guide in various subjects in the Kannada medium and have been conferring a Doctorate to various candidates, all of whom have interacted only in the Kannada language. Therefore, there is no reason for the petitioners to have expected that they would be denied entry into the Ph.D. course only on account of the fact that they are well versed only in the Kannada language. In other words, there was no 5 impediment for the University to permit the petitioners to take the course in the Kannada medium and it is this denial of the petitioners' right to pursue the Ph.D course in the language which is common to all other Universities and which is held out as a reason for denying the right of the petitioners to pursue their Ph.D. course, that the petitioners claim discrimination by the University which is clearly arbitrary and violative of Article 14 of the Constitution of India. The petitioners having educated themselves in Kannada medium throughout and even having appeared for the entrance examination conducted by the very respondent - University in Kannada language, the respondent - University is estopped from now denying the right of the petitioners to pursue the course. It is contended that the Doctorate that would be conferred is for the proficiency of an individual student in a particular subject and the depth of the knowledge, the extent of personal and academic excellence in any subject can be assessed by an evaluator and the language therefore would not take the predominance in determining the 6 eligibility of the student for the Doctorate and therefore, the English language would have no nexus to the object to be achieved by the respondent - University and its policy in dictating that the course shall not be in any other language other than English, and is therefore, highly discriminatory and is violative of the petitioners' fundamental rights. It is further contended that even the prestigious competitive examinations like the Indian Administrative Service, the Indian Police Service or the State-level KPSC Examinations are being conducted in the Regional language and are being conducted in Kannada in the Karnataka State and therefore, the University seeking to place English on a pedestal and refusing to permit persons such as the petitioners from taking the course in Kannada language, is clearly discriminatory and therefore, seeks that the petition be allowed.
The respondents have filed detailed Statement of objections. They would contend as follows insofar as the 7 respondent - University being governed by the Regulations of the University Grants Commission in the following words:
For the first time, the University Grants Commission ('the UGC' for short) by Notification dated 01.06.2009 published in the Gazette of India dated 11.07.2009, made and brought into force Regulations called the University Grants Commission (Minimum Standard and Procedure for Award of M.Phil./Ph.D., Degree) Regulations, 2009, (hereinafter referred to as "the UGC Ph.D. Regulations"). These Regulations for the first time brought about Minimum Standards at National Level, making provisions for uniform procedure for Admission, Course Work and National Minimum Standard for Evaluation. That apart, it also stipulated depository with U.G.C. Regulation 20 made it compulsory that along with the Ph.D., Degree the Degree Awarding University shall issue a certificate certifying to the effect that the degree has been awarded in accordance with the provisions of these Regulations of the UGC. Regulations 14 to 18 which deal with Evaluation and 8 Assessment Methods stipulated amongst others that upon satisfactory completion of Course Work and Research Methodology which shall form part and parcel of Ph.D., Programme, the Ph.D., Scholar shall undertake research work and produce a Draft Thesis within a reasonable time as stipulated by the University. It also stipulated that prior to submission of the Thesis, the student shall make a Pre-Ph.D., presentation in the Department that may be open to all Faculty Members and Research Students for getting feedback and comments which may be suitably incorporated into Draft Thesis under the advise of the Supervisor. It is also stipulated as an essential condition that Ph.D., candidate shall publish one Research Paper in a Referred Journal before the submission of the Thesis / Monograph for adjudication and produce evidence for the same in the form of acceptance letter or the reprint. As of now, most if not all the referred journals are published in English. Regulations require evaluation of the thesis submitted by Ph.D. students by at least two experts out of whom at least 9 one shall be from outside the State. It also provides that it shall be up to the University concerned to have one examiner from outside the country. This is incorporated in the Regulations obviously with a view to have the Ph.D. thesis evaluated by best of experts in the country and worldwide, so that the Ph.D degree awarded will be worthy of acceptance, globally. UGC by its letter dated 20.08.2009 directed the University to amend the concerned Regulations accordingly. Object of the minimum standards prescribed by the UGC Regulations is to enhance the standards of higher education in the country and to make the Ph.D. degrees awarded by the Indian Universities acceptable worldwide by adopting global standards.
In the light of the UGC Ph.D. Regulations which came into force on 11.07.2009, it became necessary for the University to modify its pre-existing Ph.D. regulations. The Academic Council after obtaining an expert committee report proposed draft of the modified regulations. After obtaining the approval of the Syndicate, the draft regulations was submitted 10 to the State Government for submission to His Excellency the Chancellor for approval. The State Government transmitted the Regulations to His Excellency the Chancellor with its comments. His Excellency the Chancellor approved the modified Draft Regulations on 27.09.2010. Approval of His Excellency the Chancellor was communicated to the University by the Government by its letter dated 14.10.2010. Thereafter the modified Regulations made under Section 44 of the Act, governing Ph.D. Degree course in the University were notified for implementation by notification dated 11.11.2010. By this notification, the Draft Regulations, copy of which has been produced by the petitioners as Annexure-G have become final and have been implemented from the academic year 2010-2011 and therefore, the contention of the petitioners that these regulations are only Draft Regulations is false and it is false to the knowledge of the petitioners. Therefore, on and from 11.11.2010, Ph.D. programme will have to be only in accordance with the modified Regulations for the Ph.D. Degree 11 course made by the University, which hereinafter are referred to as the "University Ph.D. Regulations". It is the requirement of these Regulations that the medium of instruction, examination and submissions shall be in English except in the case of Indian languages. Clause 9(iv) of the Regulations stipulates that 'The Thesis produced by the Ph.D. student in the University / Departments / Research Centre and submitted to the University shall be evaluated by at least two experts, out of whom one shall be from outside the State. It shall be upto the Board of Studies to have one examiner from outside the country.
Question papers for the Entrance Examination for selection of candidates for Ph.D. Programmes and also for the one following the course work, are set by external examiners. Double valuation method is being followed in both the cases."
4. Insofar as the contention of the petitioners that they had answered the entrance examination in Kannada language and therefore, the respondent - University is estopped from 12 denying their right to pursue the Sociology course in the Kannada language, as well, is on account of the following circumstances:
By a notification dated 08.04.2011, applications were invited for enrolment to Ph.D. programme for the year 2011- 2012. The notification specifically referred to the Regulations in force and also instructed the candidates that they can download the Regulations from the University's website. Along with the notification, intake fixed for Ph.D. programme 2011-2012, was also published. Petitioners along with others seeking enrolment to Ph.D. programme for the year 2011-2012 applied in answer thereto.
Entrance examination was held on 24.04.2011 as notified. Question Paper was set in English. A copy of the Question Paper in Sociology issued for Ph.D. Entrance Test April, 2011 is annexed to the petition as Annexure-R5. Candidates were required to answer the paper only in English. Entrance Test was held in 14 subjects. Outsourced Staff, coded 13 the Answer Scripts without verifying whether answer papers were in English or not and the Coded Answer Scripts were forwarded to Examiners, both of whom were External Examiners. The marks awarded by the Examiners were averaged as stipulated and the results of the Entrance Examination were declared and the merit list was published on the basis of marks secured in the Entrance Examination. Petitioners have produced along with the Writ Petition the merit list so published, at Annexure-C. It is for the first time from the pleadings in the present Writ Petition that the University came to know that the petitioners had answered the Entrance Examination in Kannada, contrary to the Regulations. On receiving notice in the Writ Petition, clarification was sought from the Registrar (Evaluation), who clarified that all the Answer Booklets were coded for evaluation by the outsourced staff and the same were valued by two examiners both of whom were from other Universities in the State and that the marks awarded by the Examiners were uploaded to the system and 14 results were declared accordingly. He further clarified that he was not aware of the medium of answers as written by the candidates in the answer booklets. It is crystal clear that even though the Question Papers were in English and candidates were required to answer only in English, the petitioners, in utter defiance of the Regulations and specific instructions, have answered the Examination in Kannada and thus got admitted to the Pre-Ph.D. programme by foul means and contrary to the Regulations, which was not within the knowledge of the University until it checked up after going through the contents of the present Writ Petition. On thorough review of answer scripts of the Entrance Examination, it is noticed that except for some of the candidates in Sociology, in respect of every other subject, candidates have answered the Entrance Examination only in English. It also has come to the knowledge of the University that apart from the two petitioners, one Sri. S.G. Siddagangaiah and another Ms. G.S. Sowmya, both in the subject of Sociology, have been granted provisional admission 15 and registration, even though they had answered the Entrance Examination in Kannada contrary to the requirement of the Regulations. Hence, it is stated that the University would take corrective action against the two petitioners and the two other students named above for their having secured Provisional Registration for the Ph.D. Programme in violation of the Regulations, after the disposal of the present writ petitions.
Further, the practical difficulty in permitting the petitioners to pursue the course in the Kannada language is pointed out not only with regard to the express provisions of the Regulations, but it is emphasised that, the course work component of the Ph.D. programme concluded in March 2013. As programme requirement, the candidates had to pass Pre- Ph.D. Course Work Examination. By notification dated 02.04.2013, the University notified the examinations. The petitioners had applied for the examinations and paid the fee in terms of the Regulations. But, they did not seek any clarification from the University about the medium of 16 instruction for Pre-Ph.D. Course Work Examination. They had been aware at all points of time right from the moment they applied for the Ph.D. Programme in April 2011, that the medium of instruction is only English and the entire Course Work has also to be carried out in English. Misrepresenting before this Court and asserting that they came to know that pre-
Ph.D. Course Work Examination should be in English only when they went to pay the Examination Fee, they have presented the instant Writ Petitions mischievously on the basis of falsehood and suppression of material facts. Hence, it is contended that the writ petitions are lacking in bona fides and the conduct of the petitioners also disentitles them for any relief.
The learned counsel for the respondent, while highlighting the said contentions, would place reliance on the decision of the Supreme Court in the case of Hindi Hitrakshak Samiti and Others vs. Union of India and others 1990 (2) SCC 352, wherein in an identical situation, the Supreme Court while 17 addressing the controversy whether candidates could be denied their demand to be permitted to take the course or examination in a particular language, held as follows:
"It is difficult to accept that in not holding entrance examination in any particular language, be it Hindi or regional language, amounts to denial of admission on the ground of language. Every educational institution has a right to determine or set out its method of education and conditions of examination and studies provided these do not directly or indirectly have any causal connection with violation of the fundamental rights guaranteed by the Constitution. It may be that Hindi or other regional languages are more appropriate medium of imparting education to very many and it may be appropriate and proper to hold the examinations, entrance or otherwise, in any particular regional or Hindi language, or it may be that Hindi or other regional language because of development of that language, is not yet appropriate medium to transmute or test the knowledge or capacity that could be had in medical and dental disciplines. It is a matter of formulation of policy by the State or educational authorities in charge of any particular situation. Where the existence of a fundamental right has to be established by acceptance of a particular policy or a course of action for which there is no legal compulsion or statutory imperative, and on which there are divergent views, the same cannot be sought 18 to be enforced by Article 32 of the Constitution. Article 32 of the Constitution cannot be a means to indicate policy preference.
It is difficult to contend that the actions flowing from non-acceptance of any policy perspective, amount to direct and causal violation of the fundamental right of the citizens guaranteed under the Constitution of India. Court is not the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the Constitution.
It is well settled that judicial review, in order to enforce a fundamental right, is permissible of administrative, legislative and governmental action or non- action, and that the rights of the citizens of this country are to be judged by the judiciary and judicial forums and not by the administrators or executives. But it is equally true that citizens of India are not to be governed by the judges or judiciary. If the governance is illegal or violative of rights and obligations, other questions may arise but whether, as mentioned hereinbefore, it has to be a policy decision by the government or the authority and thereafter enforcement of that policy, the court should not be, and we hope would not be an appropriate forum for decision."
5. By way of reply, the learned counsel for the petitioners would insist that notwithstanding the stand of the respondents, 19 it would be necessary to consider the case of the petitioners in the light of the Constitution Bench judgment in the case of D.A.V. College, Bhatinda etc. vs. The State of Punjab and others AIR 1971 SC 1731, and would cite paragraph 8 of the said judgment, which reads as follows:
"8. The University does not deny that it had adopted Punjabi language as the sole medium of instruction and for examinations but it seeks to justify it on the ground that it is the national policy of the Government of India that the energetic development of Indian languages and literature is a sine qua non for educational and cultural development. Unless this is done the creative energies of the people will not be released, standards of education will not improve, knowledge will not spread to the people, and the gulf between the intellegentia and the masses will remain, if not widened further. The observations of the Education Commission in its report for 1964-66 as well as from the Report of the Committee of Members of Parliament on education in 1967 were referred to in support of this policy in furtherance of which the second respondent says that it "adopted a phased programme for switch over from English to Punjabi as sole medium of instruction" for pre- University with effect from academic session 1970-71." 20
This would run counter to the case of the petitioners, as it is evident that the choice of language of the University is necessarily a matter of policy and as laid down in the case of Hindi Hitrakshak Samiti, this is plain and therefore, in the present case on hand, the point for consideration is, whether the petitioners can insist that in view of most other Universities in the State having permitted the students to pursue the Post- Graduate courses in Kannada language, if the respondent - University could be an exception where it insists that the course can only be pursued in the English language, is permissible.
As laid down by the Apex Court in the case of Hindi Hitrakshak case which is self evidence, there is no merit in the present case on hand. The petitions are dismissed.
Sd/-
JUDGE KS