Kerala High Court
The Kerala University vs Zita Francis on 3 August, 2021
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 765/2021 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
WA NO. 765 OF 2021
AGAINST THE JUDGMENT DATED 22.03.2021 IN WP(C) 27818/2019 OF HIGH COURT
OF KERALA, ERNAKULAM
APPELLANT/3rd RESPONDENT:
THE KERALA UNIVERSITY
REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE, PALAYAM,
THIRUVANANTHAPURAM 695 034.
BY ADV SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2:
1 ZITA FRANCIS
AGED 39 YEARS
W/O. P.P. ANTONY RESIDING AT KUNNEL HOUSE, MARARIKULAM
NORTH P.O. CHERTHALA, ALAPPUZHA DISTRICT 688 523.
2 THE DEPUTY DIRECTOR, DIRECTOR OF COLLEGIATE EDUCATION,
6TH FLOOR, VIKAS BHAVNAN, PALAYAM,
THIRUVANANTHAPURAM 695 033.
3 UNIVERSITY GRANTS COMMISSION
(UGC), BAHADUR SHAH ZAFAR MARG, NEW DELHI 110 002.
BY ADVS.
R1 BY SMT. INDU SUSAN JACOB
R3 BY SRI.S.KRISHNAMOORTHY, CGC
R1 BY SRI. LIJU.V.STEPHEN
SRI. TEK CHAND, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 765/2021 :2:
Dated this the 3nd day of August, 2021.
JUDGMENT
SHAJI P. CHALY, J.
Instant writ appeal is preferred by the third respondent in W.P. (C) No. 27818 of 2019 challenging the judgment of the learned single Judge dated 22.03.2021, whereby it was held as follows at paragraph 6:
"6. I have heard the learned counsel for the parties, appraised the paper book and of the view that there is force and merit in the submission of the learned counsel for the petitioner. Public Notice, Ext.P22 dated 23.2.2018 recognized the degrees of Post Graduation ie., M.Sc Psychology from the Madras University, Chennai from 1995-96 to 2006-07. Petitioner had submitted an application and taken the admission in pursuance to the prospectus 2007-2008, the aforementioned, notification is fully applicable to the petitioner. The decision of the Academic Council in not recognizing the degree of M.Sc Psychology through distance education course is wholly illegal. The equivalence certificate as sought for ought to have been, in such circumstance, given. The stand of the respondent of not recognizing the degree which involved open hand, physical training would not be applicable for M.Sc Psychology as it can be done through the distance education mode. As far as the M.Sc Counselling from IGNOU obtained by the petitioner vide Ext.P5, respondent University has been adopting pick and choose policy in recognizing the M.Sc degree in Computer Science awarded by the Bharathiar University, Coimbatore. Even otherwise, the notification dated 10th of June 2015, Ext.P16 recognized all the degrees/diplomas/certificates including technical education W.A. No. 765/2021 :3: degrees/diplomas awarded through open and distance learning mode of education by the Universities established by an Act of Parliament or State Legislature. IGNOU is a University established by the Central Act and therefore a person holding the degree would be eligible for posts and services under the Central Government and the State Government cannot cause any discrimination for the holder of such degrees.
Accordingly, the writ petition is allowed. The degrees held by the petitioners will not be rejected, in case the petitioner seeks any future appointment, as and when invited through notifications, subject to compliance of other conditions."
2. It is, thus, challenging the legality and correctness of the said judgment, this appeal is filed. In fact, various reliefs are sought for by the writ petitioner/first respondent in the writ petition and in order to have a better understanding of the issues, it is only appropriate that the reliefs sought for in the writ petition are extracted and they read thus:
1. To issue a Writ of Mandamus or any other appropriate Writ, order or direction to declare that the MSc Degree in Counselling and Family Therapy awarded by Indira Gandhi Open University and MSc Degree in Psychology awarded by University of Madras, Institute of Distant Education to Petitioner are equivalent to the corresponding Degrees awarded by Universities in Kerala for the purpose of employment.
2. To issue a Writ of Mandamus or any other appropriate Writ, order or direction to directing the 3rd Respondent to grant recognition of Petitioner's MSc Degree in Counselling and Family Therapy W.A. No. 765/2021 :4: awarded by Indira Gandhi Open University and MSc. Degree in Psychology awarded by University of Madras, Institute of Distant Education as equivalent to the corresponding Degrees awarded by 3rd Respondent Universities for the purpose of employment.
3. To issue a Writ of Mandamus or any other appropriate Writ, order or direction to directing the 1st Respondent to verify Petitioner's Degree Certificates for the purpose of employment in the light of Exhibit P 15 to Exhibit P 23.
4. To issue a Writ of Mandamus or any other appropriate Writ, order or direction to setting aside Exhibits P10, P11, P25 and the order rejecting Petitioner's Exhibit P24 request for recognition of MSc.
Degree in Psychology awarded by University of Madras, Institute of Distant Education.
3. The material facts for the disposal of the appeal are as follows:
The writ petitioner is aggrieved by the refusal of the Kerala University to recognise the postgraduate degrees awarded to the writ petitioner/first respondent by Indira Gandhi National Open University and the University of Madras for the purpose of employment. The writ petitioner has done her graduation in B.Sc Sociology and B. Ed from the University of Calicut. She has also secured M. Sc Bioinformatics from Sikkim Manipal University in 2004, M.Sc Psychology from University of Madras in 2009 and M.Sc Counselling and Family Therapy from Indira Gandhi National Open University (IGNOU) in 2015.
4. According to the writ petitioner, in order to pursue her higher W.A. No. 765/2021 :5: education for various reasons, she opted for distance education programme and courses under open University. The degree certificates and post graduate certificates are produced as Exts. P1 to P6 respectively. The syllabus for writ petitioner's M. Sc Psychology from the University of Madras is produced and marked as Ext. P7 in the writ petition.
5. The case of the writ petitioner is that after completing her studies, she worked as Counsellor and Family Therapist at Sahrudaya Hospital, Thathampally, Alappuzha for 4 ½ years ie., during the period 2010-2015. Thereafter, the writ petitioner worked as a teacher in Psychology at S.D.V Central School, Alappuzha during the period 2017-2018, evident from Exts.P8 and P9 certificates dated 26.02.2018 and 15.05.2018. Pursuant to the advertisement in vernacular daily inviting application for the post of Guest Lecturer (Psychology) at St.Michael's College, Cherthala, Alappuzha, the writ petitioner applied for the said post. As per the prevailing procedure for admission as Assistant Supervisor, a candidate has to get all the relevant documents verified by the Deputy Director Collegiate Education, Thiruvananthapuram-- first respondent. On verification of the records, the first respondent noticed that the writ petitioner's post graduate degrees were obtained from the University outside Kerala and W.A. No. 765/2021 :6: therefore, she was directed to get eligibility and recognition from any University in Kerala.
6. It was thereupon that the writ petitioner submitted an application in the year 2018 before the University of Kerala --appellant herein for securing eligibility and recognition of M. Sc degree in Counselling and Family Therapy awarded by the Indira Gandhi National Open University, New Delhi and M.Sc degree in Psychology awarded by the University of Madras, Institute of Distance Education. However, the writ petitioner was issued with Exts. P10 and P11 memos dated 20.07.2018 and 03.08.2018 respectively by the appellant University rejecting her application, which according to her, is without assigning any valid reasons in regard to the recognition of the post graduate degrees awarded by the respective University. It is stated by the University that it does not approve correspondence courses for science programmes with practical, which is contrary to the actual fact, is the submission.
7. Further case of the writ petitioner is that her bachelors degree as well as B.Ed Degree were awarded by the appellant University and in the appellant University, a Bachelor's degree or a B. Ed degree is the eligibility for pursuing a Masters degree in Psychology. The relevant pages of minutes of the third respondent University dated W.A. No. 765/2021 :7: 13.03.2019 is produced as Ext. P2. Thereupon, the writ petitioner has submitted a representation to the Registrar of the Indira Gandhi Open University, New Delhi, which forwarded Ext. P14 communication dated 13.08.2018.
8. According to the writ petitioner, the objective of the system of distance education or continuing education is to remove the imbalance in the field of education caused by socio economic factors and to support those who are unable to afford formal education due to socio economic factors or those who have missed educational opportunities and to get a second chance through distance education. Contentions are also advanced to the effect that Indira Gandhi National Open University has been established by the Act of the Parliament in 1985 with the objectives of enhancing access to quality higher education through the distance mode and to encourage the open University and distance education systems in the educational pattern of the country and to co-ordinate and determine the standards of such systems. It was also pointed out by the writ petitioner that the IGNOU programmes are also recognised by the distance education Council and Ext. P15 communication dated 09.12.2011 is produced to show that the programmes of IGNOU are recognised.
9. It was also pointed out that the post graduate course in M. Sc W.A. No. 765/2021 :8: Counselling and Family Therapy from IGNOU and M.Sc Psychology from the University of Madras under the distance education programme are recognised by the erstwhile Distance Education Council as well as the University Grants Commission (UGC). The writ petitioner had also raised a case that the Central Government, the State Government and the Regulatory bodies have all been consistent in their views that degrees awarded by the Open Universities and Distance Education Institutions must be treated as equivalent to correspondence degrees awarded by the traditional Universities in the country. In order to substantiate the said contention, Exts. P16 to P22 notifications/communications/circulars are produced. Ext. P23 produced by the writ petitioner is in regard to the list of the recognised institutions for distance mode programmes downloaded from the website of the UGC. It was in the above backdrop that the writ petition was filed.
10. Taking into account the rival contentions made and the facts and figures appeared from the materials on record, the learned single Judge had directed that the degrees held by the writ petitioner/first respondent will not be rejected, in case the writ petitioner seek any appointments as and when invited through notifications, subject to the compliance of the other conditions.
W.A. No. 765/2021 :9:
11. The paramount contentions advanced by the University in the appeals are that it was without considering the crucial aspects highlighted by the appellant University that the impugned judgment was rendered by the learned single Judge; that the courts will not interfere with the policy relating to academic matters; in the instant case, academic bodies of the University, on considering the scheme and syllabus of the courses concerned, have come to the conclusion that the same cannot be considered equivalent to the courses conducted by the University and as such, the decision taken by the University ought not have been interfered with; that Section 25(xii) of the Kerala University Act, 1974 stipulates that the academic council has the power to decide, what examinations of other Universities may be accepted as equivalent to those of the Universities and to negotiate with other Universities for the recognition of examinations of the University; that the exercise envisaged is not an empty one and it is only after a detailed examination of the scheme and syllabus of a course that the Board of Studies and Faculty in that subject make recommendations which are then considered by the academic council; that M.Sc degree in Counselling and Family Therapy awarded by IGNOU was verified by the Chairman, Board of Studies in Psychology (PG) and the Dean, Faculty of Science of University of Kerala; that the W.A. No. 765/2021 : 10 : Chairman, Board of Studies remarked that the course structure and contents of the said course are not at par with that of M.S.C/M. Sc in Psychology offered by the University of Kerala; and that the eligibility criteria for the course and the course work also do not satisfy the requirements and it was due to the aforesaid reasons that the Academic Council decided to reject the application for equivalency.
12. It was further submitted that the learned single Judge had not taken into account the material aspects required for the purpose and therefore, arrived at incorrect conclusions. Other contentions are also raised relying upon the statutory provisions under the Kerala University Act 1974 and the First Statutes 1977, which would be dealt with hereafter
13. We have heard, learned counsel appeared for the appellant University Sri. Thomas Abraham, Smt. Indu Susan Jacob appeared for the first respondent and Sri. S. Krishnamoorthy appeared for the University Grants Commission, and perused the pleadings and materials on record.
14. In order to understand the nature and manner of the order passed by the Board of Studies, we had directed the University to produce the original files in regard to the applications submitted by the writ petitioner for the equivalency, files are produced, and accordingly, W.A. No. 765/2021 : 11 : we have gone through the entire original files, also in order to arrive at a just, proper and reasonable conclusion with respect to the contentions advanced by the rival parties.
15. The paramount contention advanced by Mr. Thomas Abraham appeared for the University was relying upon Annexure 1, proforma for granting equivalency/eligibility for the degree/diploma course of other Universities/Institutions, produced along with I.A. No. 1 of 2021, which is countersigned by the Chairman, Board of Studies on 10.06.2018 seeking equivalency in regard to the M.Sc degree in Psychology (distance), in regard to another student, which was not recommended. It is clear from Annexure 1 that specific remarks in the said application was made by the Chairman of the Board of Studies (PG) in Psychology, University of Kerala, and the equivalency was not recommended by the Chairman of the Board of Studies, apart from the counter signature of the Faculty, Dean. Annexure 2 is the typical proforma in regard to the writ petitioner, whereby also the Chairman of the Board of Studies has not recommended for equivalency, which is also countersigned by the Faculty, Dean confirming the view of non recommendation by the Chairman.
16. Learned counsel for the writ petitioner/first respondent has also produced an additional document, Ext. R1(a) along with I.A No. 2 W.A. No. 765/2021 : 12 : of 2021 namely the prospectus of the University of Madras, Institute of Distance Education, 2007-2008 to substantiate that the syllabus of the University of Kerala as well as the Madras University are almost identical in nature. However, the learned counsel for the University, Sri. Thomas Abraham, submitted that the Chairman, Board of Studies and the Faculty, Dean have expressed their clear opinion in the application submitted by the writ petitioner in Annexure 11 proforma and therefore, it was not proper for the writ court to have interfered with the decision taken by the Board of studies.
17. On the other hand, learned counsel for the writ petitioner/first respondent submitted that the stand adopted by the University of Kerala is against the national education policy; that the distance education offered by the Universities are equivalent to the regular courses offered by the University; and therefore, if the University of Kerala is adopting such a rigid stand, it would be against the interests of the national policy of the education. It was also pointed out that the learned single Judge had taken into consideration the entire aspects available from the materials on record and arrived at the decisions.
18. The learned counsel has also submitted that on a perusal of Ext. P10 memo dated 20.07.2018 issued by the Registrar, University W.A. No. 765/2021 : 13 : of Kerala declining recognition/equivalency, it is clear that no reasons are assigned, except stating that as a policy matter, the University of Kerala does not approve correspondence courses for Science programmes with practicals and further that the writ petitioner has not acquired her graduation in the field of psychology. It was also submitted that in Ext. P11 communication dated 03.08.2018, it is stated only that the academic bodies of the University have already considered the matter of recognition of the M. Sc degree in Psychology awarded by the University of Madras through distance mode, and after detailed study it was resolved not to recognise the degree.
19. The learned counsel has also invited our attention to Ext. P12 minutes of the meeting of the academic council dated 13 th March, 2019 held at the Senate Chamber, University Buildings, Thiruvananthapuram, wherein the academic council considered a similar question. According to the learned counsel for the writ petitioner, in the said meeting, the Board of Studies in Computer Science (PG) has considered a question of granting recognition to a degree through distance education mode of Bharathiar University Chennai as equivalent to correspondence degree through distance mode of Kerala University. However the Board of Studies had recommended that the Kerala University does not give any degree as W.A. No. 765/2021 : 14 : distance mode degree by explicitly mentioning it in the degree certificate and therefore, it was opined by the Board of Studies that M.Sc Computer Science degree through distance mode of even Kerala University cannot be equated to the correspondence degree of Kerala University through regular mode as the mode of education, admission eligibility criteria and scheme and syllabus etc are different.
20. Anyhow, it is clear from Ext. P12 that the academic council considered the aforesaid issue, taking into account the opinion of the Board of Studies but departed from the opinion of the Board of Studies and it was resolved to recognise the M. Sc degree in Computer Science awarded by the Bharathiar University, Coimbatore through distance mode as equivalent to the M. Sc (Computer Science) under distance mode of the University of Kerala. In fact, learned counsel for the writ petitioner has pointed out the same to demonstrate that the academic council is the ultimate authority to take a decision in regard to the equivalency.
21. Here, in the instant case, the decision was rendered by the Registrar of University of Kerala on the basis of the opinion expressed by the Chairman of the Board of Studies and the Faculty, Dean. Therefore, according to the learned counsel for the writ petitioner, the interference made by the learned single Judge in the action of the W.A. No. 765/2021 : 15 : Registrar of the University declining equivalency was right and if viewed so, no manner of interference is required in the Judgment.
22. The learned counsel has also invited our attention to Ext. P21 letter dated 14.10.2013 issued by the UGC and addressed to the Registrar/Director of all the Indian Universities (Deemed, State, Central Universities/Institutions of National importance) in regard to the equivalence of degrees awarded by Open and Distance Learning (ODL) Institutions at par with Conventional Universities/Institutions, wherein it was pointed out by the UGC that the Government of India has envisaged greater role for the open distance education system and the envisioned role may be fulfilled by recognising and treating the degrees/diplomas/certificates awarded through the distance mode at par with the degrees obtained through the formal system of education. It was also conveyed in the said letter that open and distance education system in the country is contributing a lot in expansion of Higher Education and for achieving target of Gross Enrolment ratio without compromising on quality and non recognition/non equivalence of degrees of Open and Distance Learning (ODL) Institutions for the purpose of promotion/employment and pursuing higher education may prove a deterrent to many learners and will ultimately defeat the purpose of Open and Distance Education.
W.A. No. 765/2021 : 16 :
23. Accordingly, it was stated in unequivocal terms that the degrees/diplomas/certificates awarded for programmes conducted by the ODL institutions recognised by DEC (erstwhile) and UGC, in conformity with UGC Notification on specification of degrees should be treated as equivalent to the corresponding awards of the degree/diploma/certificate of the traditional Universities/institutions in the country.
24. The learned counsel has also invited our attention to Ext. P22 public notice issued by the UGC dated 23.02.2018. For the sake of convenience and brevity, it is only appropriate that the aforesaid letter and public notice are extracted:
"University Grants Commission Bahadur Shah Zafar Marg New Delhi-110 002 F. No. UGC/DEB/ 2013 Dated 14.10. 2013 The Registrar/Director of all the Indian Universities (Deemed, State, Central Universities/ institutions of National importance) Subject: Equivalence of Degrees awarded by Open and Distance Learning (ODL) Institutions at par with Conventional Universities/ Institutions Sir/ Madam, There are a number of Open and Distance Learning Institutions (OLDLIs) in the country offering Degree/ Diploma/Certificate programmes through the mode of non formal education. These comprise Open Universities, W.A. No. 765/2021 : 17 : Distance Education institutions (either single mode or dual mode) of Central Universities, State Universities, Deemed to be Universities, Institutions of National Importance or any other Institution of Higher learning recognized by Central/State/Statutory Council/Societies registered under the Society Registration Act, 1860.
2. A Circular was earlier issued vide UGC letter Fl No- 52/2000(CPP-II) dated May 05, 2004 (copy enclosed) mentioning that Degrees/Diplomas Certificates/ awarded by the Open Universities in conformity with the UGC notification of degrees be treated as equivalent to corresponding awards of the traditional Universities in the country.
3. Attention is also invited to UGC circular No F1-25/93(CPP-II) dated 28 July 1993 (copy enclosed) for recognition of degrees and diplomas as well as transfer of credit for courses successfully completed by students between the two types of universities so that the mobility of students from Open University stream to traditional universities/ institutions is ensured without any difficulty.
4. The Government of India, in exercise of its power conferred under section 20(1) of UGC Act 1956, issued directions dated 29th December 2012 entrusting UGC with the responsibility of regulating higher education programme in open and distance learning (ODL) mode. Consequently, Universities/ Institutions desirous of offering through distance mode would require recognition of UGC.
5. As you are aware, The Government of India has envisaged a greater role for the Open and the Distance Education System. The envisioned role may be fulfilled by recognizing at par with the degrees obtained through the formal system of education. Open and Distance Education system in the country is contributing a lot in expansion of Higher Education and for achieving target of GER, without compromising on quality. Non recognition/ non equivalence of degrees of ODL institutions for the purpose of promotion/employment and may prove a deterrent to may learners and will ultimately defeat the purpose of Open and Distance Education.
Accordingly, the Degrees/ Diplomas/ Certificates awarded for W.A. No. 765/2021 : 18 : programmes conducted by the OlD Institutions, recognized by DEC (erstwhile) and UGC, in farmity with UGC Notification on specification of Degrees should be treated as equivalent to the corresponding awards of the Degree/Diploma/Certificate of the traditional Universities/ institutions in the country.
(Vikram Sahay) Director (Admn)"
"PUBLIC NOTICE The Government of India has envisaged a greater role for the Open and the Distance Education System. The envisioned role may be fulfilled by recognizing and tréating the Degrees/ Diplomas/Certificates awarded through distance mode at par with the corresponding awards of Degrees/Diplomas/Certificates obtained through the formal system of education. Open and Distance Education System in the country is contributing a lot in expansion of Higher Education and for achieving target of Gross Enrolment Ratio, without compromising on quality. Non recognition/non equivalence of degrees of Open and Distance Learning (ODL) institutions for the purpose of promotion/employment and pursuing higher education may prove a deterrent to many aspiring students and will ultimately defeat the purpose of Open and Distance Education.
Accordingly, the Degrees/Diplomas/Certificates awarded for programmes conducted by the ODL institutions, recognized by the erstwhile DEC/UGC, in conformity with UGC Notification on Specification of Degrees should be treated as equivalent to the corresponding awards of the Degree/Diploma/Certificate of the traditional Universities/Institutions in the country.
UGC has notified UGC (Open and Distance Learning) Regulations, 2017 in the official Gazette on 23/06/2017. As per UGC (Open and Distance Learning) Regulations, 2017 under Part-I (2)(P), the programmes in engineering, medicine, dental, pharmacy, nursing, architecture, W.A. No. 765/2021 : 19 : physiotherapy and such other programmes which require hands-on training are not permitted to be offered under Open and Distance Learning mode.
(Prof. Rajnish Jain) Secretary"
25. Ext. P23 issued by the UGC is in regard to the recognition accredited to the Universities/Institutions for offering programmes through distance mode and serial No 170 thereto deals with the State of Tamil Nadu, and it shows that Madras University of Chennai, which is a State University, is a recognised one during the period 1995-1996 to 2006-2007 and the type of recognition is shown as post facto programme-wise recognition, from where it is clear that the M. Sc psychology, Geography, information Technology, Mathematics etc. are recognised by the UGC.
26. The sum and substance of the contentions advanced by the learned counsel for the writ petitioner/1st respondent relying upon the said documents is that the University, while considering the application submitted by the writ petitioner, has not taken into account such aspects of the matter and therefore, the learned single Judge was justified in issuing appropriate directions in the judgment. The learned counsel has also invited our attention to various judgments of the W.A. No. 765/2021 : 20 : Apex Court as well as this Court to substantiate the contention that the Universities in India are bound by the regulations/circulars/orders issued by the UGC.
27. In Annamalai University v. Secretary to Government, Infn. & Tourism Dept. and others [2009) 4 SCC 590], wherein the question with respect to the repugnancy between University Grants Commission Act, 1956 and Indira National Open University Act, 1985 enacted by the Parliament under Entry 66 of List I of Schedule VII and entry 25 of list III respectively of the Constitution of India was considered and it was held that the question of repugnancy between them could not arise and the provisions of UGC Act would prevail over those of IGNOU Act, irrespective of the fact that the IGNOU Act was a later enactment. It was also found that the regulations framed by UGC to determine the standards of education became part of the UGC Act and the same are applicable to both the Open Universities as well as the conventional formal Universities. Therein, the intrinsic question considered was in respect of a masters degree awarded in violation of Regulation 2 of the UGC Regulations of 1985 under the open University system without requiring 3 years graduate degree and it was held that the said degree awarded was void. After considering the entire pros and cons of the matter, it was held as follows:
W.A. No. 765/2021 : 21 :
45. The amplitude of the provisions of the UGC Act vis-à-vis the universities constituted under the State Universities Acts which would include within its purview a university made by Parliament also is now no longer res integra.
46. In Prem Chand Jain v. R.K. Chhabra [(1984) 2 SCC 302 : 1984 SCC (Cri) 233 : (1984) 2 SCR 883] this Court held: (SCC pp. 308-
09, para 8) "8. ... The legal position is well settled that the entries incorporated in the lists covered by Schedule VII are not powers of legislation but 'fields' of legislation. (Harakchand Ratanchand Banthia v. Union of India [(1969) 2 SCC 166 : (1970) 1 SCR 479] SCR at p. 489.) In State of Bihar v. Kameshwar Singh [AIR 1952 SC 252: 1952 SCR 889] this Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court has clearly ruled that the language of the entries should be given the widest scope or amplitude. (Navinchandra Mafatlal v. CIT [AIR 1955 SC 58: (1955) 1 SCR 829] SCR at p. 836.) Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. [See State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [AIR 1958 SC 560: 1959 SCR 379] SCR at p. 391.] It has also been held by this Court in Check Post Officer v. K.P. Abdulla and Bros. [(1970) 3 SCC 355 : AIR 1971 SC 792: (1971) 2 SCR 817] that an entry confers power upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held W.A. No. 765/2021 : 22 : to be invalid merely because it incidentally encroaches on matters assigned to another legislature."
47. In University of Delhi v. Raj Singh [1994 Supp (3) SCC 516 :
1995 SCC (L&S) 118 : (1994) 28 ATC 541] this Court held: (SCC pp. 526-27, para 13) "13. ... By reason of Entry 66, Parliament was invested with the power to legislate on 'coordination and determination of standards in institutions for higher education, or research and scientific and technical institutions'. Item 25 of List III conferred power upon Parliament and the State Legislatures to enact legislation with respect to 'vocational and technical training of labour'. A six-Judge Bench of this Court [Ed.: The reference is to Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703.] observed that the validity of the State legislation on the subjects of university education and education in technical and scientific institutions falling outside Entry 64 of List I as it then read (that is to say, institutions for scientific or technical education other than those financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance) had to be judged having regard to whether it impinged on the field reserved for the Union under Entry
66. In other words, the validity of the State legislation depended upon whether it prejudicially affected the coordination and determination of standards. It did not depend upon the actual existence of the Union legislation in respect of coordination and determination of standards which had, in any event, paramount importance by virtue of the first part of Article 254(1)."
48. In State of T.N. v. Adhiyaman Educational and Research Institute [(1995) 4 SCC 104] this Court laid down the law in the following terms: (SCC pp. 134-35, para 41) "41. What emerges from the above discussion is as follows: W.A. No. 765/2021 : 23 :
(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to shortlist the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or W.A. No. 765/2021 : 24 : make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally."
49. In State of A.P. v. K. Purushotham Reddy [(2003) 9 SCC 564] this Court held: (SCC p. 572, para 19) "19. The conflict in legislative competence of Parliament and the State Legislatures having regard to Article 246 of the Constitution of India must be viewed in the light of the decisions of this Court which in no uncertain terms state that each entry has to be interpreted in a broad manner. Both the parliamentary legislation as also the State legislation must be considered in such a manner so as to uphold both of them and only in a case where it is found that both cannot coexist, the State Act may be declared ultra vires. Clause (1) of Article 246 of the Constitution of India does not provide for the competence of Parliament or the State Legislatures as is ordinarily understood but merely provides for the respective legislative fields. Furthermore, the courts should proceed to construe a statute with a view to uphold its constitutionality."
(emphasis supplied) It was observed: (Purushotham Reddy case [(2003) 9 SCC 564] , SCC p. 573, para 20) "20. Entry 66 of List I provides for coordination and determination of W.A. No. 765/2021 : 25 : standards inter alia for higher education. Entry 25 of List III deals with broader subject, namely, education. On a conjoint reading of both the entries there cannot be any doubt whatsoever that although the State has a wide legislative field to cover the same is subject to Entries 63, 64, 65 and 66 of List I. Once, thus, it is found that any State legislation does not entrench upon the legislative field set apart by Entry 66, List I of the Seventh Schedule of the Constitution of India, the State Act cannot be invalidated."
50. The UGC Act, thus, having been enacted by Parliament in terms of Entry 66 of List I of the Seventh Schedule to the Constitution of India would prevail over the Open University Act.
51. With respect, it is difficult to accept the submissions of the learned Solicitor General that the two Acts operate in different fields, namely, conventional university and open university. The UGC Act, indisputably, governs open universities also. In fact, it has been accepted by IGNOU itself. It has also been accepted by the appellant University."
28. A Division Bench of this Court in State of Kerala v. Suja Kumari [2006 KHC 255=2006(1) KLT 846 =ILR 2006(1) Ker 431] considered the question of regularisation of teachers, who have secured correspondence B. Ed degree and held that they are entitled to regularisation and further that the degree from a University approved by the Universities in Kerala is not mandatory.
29. In Guru Nanad Dev University v. Sanjay Kumar Katwal and another [(2009) 1 SCC 610], among other issues, the Hon'ble Apex Court considered the question of equivalency granted by the W.A. No. 765/2021 : 26 : Universities and held that equivalency is a technical matter to be decided by the academic body and declared by publishing specific order or resolution.
30. In State of Kerala and others v. Thulasibai and others [2011 (3) KHC 65=2011(3) KLT 181=ILR 2011 (3) Ker. 157, a Division Bench of this Court considered the validity of the M. Sc in Chemistry through distance education mode offered by the Madurai Kamaraj University and held that when Special Rules do not make any distinction between a postgraduate degree obtained after regular course and one obtained through Correspondence/Distance Education, promotion of a candidate who acquired Post Graduation through Distance Education cannot be denied. It was further held that when the State Government Order dated 17.07.1965 clearly states that degrees and diplomas awarded by the Statutory Universities established by Central or State Legislature or by institutions of higher learning recognised as Universities by UGC shall be recognised, PSC cannot impose additional restrictions. Of course, the said judgment was rendered in the anvil of service law point of view. However, the Hon'ble Division Bench had examined the intrinsic aspects with respect to a degree secured in a conventional manner and in the distance mode education and held as follows:
W.A. No. 765/2021 : 27 :
"3. Going by Ext.P1, we find that for the post of Joint Chemical Examiner, the educational qualifications that the Special Rules mandate is only a Master's degree with at least 50% marks in Chemistry or Forensic science or Biochemistry of a recognized university. The Rules do not insist that the degree obtained shall be after a regular course of study. In other way, the qualification acquired by the distance education is not at all anyway inferior. In this view of the matter, we find that the learned Single Judge was correct in allowing the writ petition. In the appeal memorandum by Respondents 1 and 2, various grounds were raised. Five documents were produced along with the appeal memorandum. Annexures A, B and C were produced to show that the University of Calicut, University of Kerala and the Mahatma Gandhi University had not recognized the M. Sc. degree in Chemistry awarded by Madurai Kamaraj University under the distance education scheme. Annexure D was produced to show that the Kerala Public Service Commission informed the Government that it would accept the qualification acquired through distance education only if the candidate produces the eligibility certificate from any of the universities in Kerala. Annexure E was produced to show that the claim of the Petitioner was rejected on the date on which the writ petition was disposed of. The question as to whether the Universities in the State had recognized the M. Sc degree in Chemistry awarded by the Madurai Kamaraj University is not at all germane. So also, the conditions imposed by the Public Service Commission for accepting the qualification through distance education is an extraneous matter. Annexure E would only show that the first Respondent, knowing that the matter is pending before this Court, rejected the claim of the Petitioner. It is a pendente lite decision and it would no way affect the enforcement of the judgment. Therefore, the documents produced in appeal wouldn't tilt the scale. Ext.P4 order dated 17.7.1965 issued by the first Respondent would show that other degrees and diplomas awarded by the statutory universities established by the Central or State legislature or by other institutions of higher learning recognized as universities by the Central Universities Grants Commission should be W.A. No. 765/2021 : 28 : recognized. There is no case for the Respondents that Madurai Kamaraj University is not recognized by the Central Universities Grants Commission. Therefore, the Petitioner holds a Masters degree recognized by the first Respondent. Annexure A to C are contrary to Ext.P4. Ext.P4 does not distinguish a degree obtained after a regular course of study and a degree obtained under distance education programme. According to the learned Government Pleader, the post of the Joint Chemical Examiner is a very important technical post as the Joint Chemical Examiner has to deal with analysis of materials objects involved in grave crimes like murder, sexual offences, poisoning, Abkari offences, Narcotic drugs and psychotropic substances etc. and that an officer possessing Master's degree under the distance education is not competent to hold such highly technical posts as the experience in the laboratory is practically nil. We find no merit in the submission as Ext.P1 Rules insist only two years experience as Assistant Chemical Examiner. It is the will of the Government that is reflected in Exts.P1 and P4. So long as Ext.P1 Special Rules as now stands, we are constrained to reject the submission made by the learned Government Pleader."
31. Learned counsel has also brought to our attention the Government Order, G.O. (MS) No. 526 dated 17.07.1965, wherein qualification/degrees and diplomas recognised by the Government of India, and consequential automatic recognition was proposed, and accordingly instructions were issued. The said order reads thus:
"GOVERNMENT OF KERALA Abstract QUALIFICATION-DEGREES AND DIPLOMAS RECOGNISED BY THE GOVERNMENT OF INDIA-AUTOMATIC RECOGNITION-
INSTRUCTIONS ISSUED.
======================================================== W.A. No. 765/2021 : 29 : PUBLIC (SERVICES D) DEPARTMENT G.O. (MS) No.526. Dated, Trivandrum 17 th July, 1965 ======================================================== Read again:- 1. G.O. MS. No. 45/public (Ser.) dated 20-1-1960
2. G.O. MS. 145/Public (Ser.) dated 21-3-1963.
3. G.O. MS. 393/Public (Se.) dated 23-4-1965.
Read Also: From the Kerala Public Service Commission, Letter No. A7/16984/64 dated 10-6-1965.
ORDER In supersession of all existing orders in the subject, the Government are pleased to order as follows:
(i) Medical Degree which have been approved by the All India Medical Council only should be approved.
(ii) Other Degree and Diploma awarded by statutory universities established by an Act of the Central or State Legislature or by other Institutions of higher learning recognized as Universities by the Central University Grants Commission, should be recognized.
(iii) Certificates and Diploma awarded by the Board of Secondary and Intermediate Education duly set up and recognized by the Central Government or a State Government should be recognized.
(iv) All Technical and Professional qualifications recognized by the Government of India should be recognized for purpose of appointment to various posts in public services in the State other than teaching posts.
(v) In case of doubt, the Government should be addressed.
3/1931/8 By order of the Governor,
ZACHARIA MATHEW,
Joint Secretary.
W.A. No. 765/2021 : 30 :
32. That apart, in order to analyse the power of the academic council, Board of Studies and the Registrar of University of Kerala, our attention was invited to certain of the provisions of the Kerala University Act, 1974 ('Act, 1974' for short) and the Kerala University First Statutes, 1977. The power of the council is dealt with under Section 25 of the Act, 1974, which specifies that subject to the provisions of the Act and the Statutes, the Academic Council shall have the powers, duties and functions delineated thereunder. Clause (xii) empowers the Council to decide as to what examinations of other Universities may be accepted as equivalent to those of the University and to negotiate with other Universities for the recognition of the examinations of the University.
33. Section 28 of the Act, 1974 deals with 'Board of Studies' and sub-Section (1) thereto specifies that there shall be a Board of Studies attached to each department of study in the University and the proviso thereto provides that however that post-graduate studies in each department may have separate Board of Studies. Sub-Section (2) thereto specifies that the constitution and powers of the Boards of Studies shall be prescribed by the Statutes.
34. The Constitution and the power of the Board of Studies are W.A. No. 765/2021 : 31 : dealt with under Chapter 11 of the Kerala University First Statutes, 1977. Statute 1 of Chapter 11 deals with 'constitution of Board of Studies', which enumerates that there shall be a Board of Studies attached to each subject of study or groups of subjects in the University and further provides that post graduate studies, in each subject may have separate Board of Studies. Clause (2) of the Statues, 1977 further specifies that the Board of Studies shall be constituted by the Syndicate and clause (3) specifies that the members of the Board of Studies shall be appointed by the Syndicate.
35. There are also provisions under Chapter 11 dealing with election of Members from Board of Studies, Members of Board of Studies, reconstitution of the Board of Studies etc. The duties of the Board of Studies is dealt with under Statute 9, which reads thus:
"9. Duties of the Board of Studies:-
(1) It shall be the duty of each Board of Studies to consider and report on any matter referred to it by the Academic Council or Syndicate or the Senate or the Faculty or the Vice-Chancellor, concerned with the subject with which it deals;
(2) It shall be the duty of the Board of Studies to initiate steps to revise the syllabus and restructure the course in tune with the modern trends and development in the respective branches of knowledge and make recommendations to the Faculties concerned."W.A. No. 765/2021 : 32 :
36. The power of the Board of Studies is dealt with under Statute 10, which reads thus:
"10. Power of Board of Studies:- Each Board shall have power -
(1) to recommend for the guidance of teachers and students, books in which the prescribed subjects are suitably treated, and to recommend text books when such are required;
(2) to recommend persons suitable for appointment as Question Paper Setters, Examiners in the subjects with which it deals; (3) to make recommendations in regard to courses of study and examinations in the subjects with which it deals; (4) to address the Faculty or Faculties concerned regarding improvements in the courses of study;
(5) to consult specialists who are not members of the Board; (6) to recommend to the Academic Council for being forwarded to the Syndicate for its approval, the preparation and publication of selections or anthologies of the writing or works of authors and other masters in any subject or group of subjects; together with a synopsis of the selections or anthologies, and the names of the authors and masters and of the persons who may, in its opinion be appointed to make the selections; and (7) to bring to the notice of the Academic Council or the Syndicate as the case may be, matters of importance relating to the examinations in each subject or group of subjects."W.A. No. 765/2021 : 33 :
37. Therefore, it is clear from the duties and powers conferred on the Board of Studies as per the First Statutes, 1977 that, the Board of Studies is only vested with the duty to consider and report of any matter referred to it by the academic council or syndicate or the senate or faculty or the Vice-Chancellor, concerned with the subject with which it deals, apart from the other duties.
38. That apart, the power given to the Board of Studies makes it clear that it has only recommendatory/ or reporting duties to the academic council and other statutory authorities under the Act, 1974 and the Statutes, 1977, when sought for.
39. We have dealt with the said provisions under the Act, 1974 and the First Statutes, 1977 with the intention and objective of finding out the powers of the Board of Studies and the academic council, as far as concerning the decision of equivalency to be granted by the Kerala University in regard to the degrees awarded by the other Universities in India. One thing is clear that the Board of Studies is not vested with powers either under the Act, 1974 or the First Statutes, 1977 to decide on the question of equivalency. This we say because, the power is vested clearly with the academic council under Section 25 of Act, 1974 to decide as to what examinations of other Universities may be accepted as equivalent to those of the Universities W.A. No. 765/2021 : 34 : and to negotiate with other Universities for the recognition of the examinations of the University.
40. In the instant case, the writ petitioner was issued with Exts. P10 and P11 communications by the Registrar of Universities and the reasons assigned by the Board of Studies in order to reject the equivalence as sought for by the writ petitioner are not shown. That is the reason why we directed the University to produce the original files relating to the recognition/equivalency sought for by the writ petitioner/first respondent in the matter of M. Sc degree in Counselling and Family Therapy awarded by the Indira Gandhi Open University and M. Sc Sociology (distance) awarded by the University of Madras.
41. In regard to the files relating to the post graduate degree awarded by the IGNOU, we find that after due deliberations, the following order was passed by the Chairman of the Board of Studies in Psychology (PG):
"ACC Please see the remarks of the Chairman, BOS in Psychology (PG) and the Dean, Faculty of Science. The Chairman reaffirmed that the M. Sc in Counselling and Family Therapy course offered by Indira Gandhi National Open University may not be recognised as equivalent to M. Sc Psychology course offered by University of Kerala. The Dean, Faculty of Science has endorsed the remarks of Chairman, BOS in Psychology W.A. No. 765/2021 : 35 : (PG).
For orders of the Registrar, as to whether the matter may be intimated to the candidate.
For order of the Registrar."
42. Likewise, in the matter of recognition/equivalency of M.Sc Psychology (distance) issued by the University of Madras and after deliberations, the Chairman, Board of Studies has noted as follows in the Original file:
"Ac.c 1041001/2018
Note Sub: Recognition of M. Sc Degree in Psychology awarded by University of Madras through Distance Education.
Ref: Request from Smt. Zita Francis dated 24.07.2018 Please see the application received from Smt. Zita Francis for recognition of M. Sc Degree in Psychology awarded by University of Madras through Distance Education.
It may be noted that earlier the same course has been resolved not to be recognised by the Academic Bodies and accordingly an NR memo was sent to the applicant.
Hence, for orders on whether an NR memo may be sent to this applicant too, intimating the matter of non-recognition if agreed to draft memo prepared and placed before may be approved by the DR."
43. As we have pointed out above, the Chairman, Board of Studies or for that matter, the Board of Studies or the Dean, Faculty of Science are not vested with powers under the Act, 1974 or the First Statutes, 1977 to consider the issue of recognition/equivalency. W.A. No. 765/2021 : 36 : However, it is clear from the files that the decision was taken by the Chairman Board of Studies which was endorsed by the Dean, Faculty of Science. Therefore, it is convincingly clear that the power conferred on the academic council in the matter of equivalency was usurped by the Chairman of the Board of Studies, and the Dean Faculty of the concerned discipline in order to consider and decline the application submitted by the writ petitioner/first respondent.
44. That apart, we do not find any powers conferred on the Registrar of the University to reject an application seeking equivalency and the communications namely Exts. P10 and P11 issued by the Registrar were on the basis of the orders of the Chairman (BOS) and Dean Faculty for the purpose of intimation of the matter to the Petitioner.
45. Even though the learned Standing Counsel for the appellant University has submitted that the academic council considers the application submitted for equivalency, only if the Board of Studies has allowed the application, we are unable to agree with the same in absentia of any provisions contained under the Act, 1974 or in the First Statutes, 1977 and in view of the decision taken by the Academic Council in Exhibit P12 minutes overruling the recommendation of the Board of Studies not to grant equivalency.
W.A. No. 765/2021 : 37 :
46. Considering all the above aspects, we are of the view that interference is required to the judgment of the learned single Judge in regard to the directions given, though for our own reasons, as the decisions taken by the Chairman, Board of Studies and the Dean, Faculty in regard to equivalency were not in accordance with the provisions of the Act, 1974 and the First Statutes, 1977.
47. Accordingly, we partly allow the appeal filed by the University, vacate the directions contained in the judgment, and consequently, direct the academic council to consider the applications submitted by the writ petitioner in respect of the post graduate M. Sc degree awarded by the IGNOU and the M. Sc Psychology (distance) awarded by the University of Madras, taking into account the proposition of law laid down by the Apex Court and this Court in the judgments referred to above and any others, UGC Regulations, Circulars or orders, and the State Government Order extracted above, at the earliest and at any rate, within two months from the date of receipt of a copy of this judgment, after providing an opportunity of hearing and participation to the writ petitioner.
48. We are also of the view that, by now it is well settled that the judgments in rem rendered by the Constitutional Courts are binding on the administrative and quasi judicial authorities also, and W.A. No. 765/2021 : 38 : when directions are issued by a writ court to consider an issue taking into account any proposition of law laid down by such courts, the authority is duty bound to comply with such directions.
49. So also, before we part with the Judgment, we deem it fit to remind the appellant University that it has the responsibility, duty and obligation to take into consideration the provisions of the UGC regulations, circulars and orders, apart from the State Government orders, to have a coordinated national education programme and action, and also to avoid any complexity and inconvenience to the students participating in various courses and programmes at the national level, and irrespective of the boundaries, the boarders and the universities, and secure recognition/equivalency, which is a need of the hour and the day.
The Registry shall return the original files to the learned Standing Counsel for the appellant University after securing necessary acknowledgment.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.A. No. 765/2021 : 39 : APPENDIX APPELLANT'S ANNEXURES:
ANNEXURE 1: TURE COPY OF THE DOCUMENTS WHICH REVEAL THE REJECTION OF RECOGNITION FOR M.SC PSYCHOLOGY THROUGH DISTANCE MODE OF UNIVERSITY OF MADRAS.
ANNEXURE R2: TRUE COPY OF THE DOCUMENTS WHICH REVEAL THE REJECTION OF RECOGNITION FOR M.SC DEGREE IN COUNSELLING AND FAMILY THERAPY FROM INDIRA GANDHI NATIONAL OPEN UNIVERSITY.
RESPONDENTS' ANNEXURE:
ANNEXURE R1(a): TRUE COPY OF THE PROSPECTUS (2007-2008) OF UNIVERSITY OF MADRAS, INSTITUTE OF DISTANCE EDUCATION, CHEPAUK, WITH DETAILS OF THE SYLLABUS.
/True Copy/ PS To Judge.
rv