Calcutta High Court (Appellete Side)
Bimal Maiti vs University Of Kalyani & Ors on 6 July, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE JUSTICE ARINDAM SINHA
WP no.20536 (W) of 2017
Bimal Maiti
Vs
University of Kalyani & Ors.
For petitioner : Mr. Hirak Mitra, Sr. Adv.
Mr. Debdutta Sen, Adv.
Mr. Prasun Ghosh, Adv.
For respondent no.1 : Mr. Amitava Chaudhuri, Adv.
Mrs. M. Chaudhuri, Adv.
Mr. N. Roy, Adv.
For UGC : Mr. A.K.Gupta, Adv.
For proforma respondent : Mr. Ranjan Deb, Sr. Adv.
Mr. Siddhartha Chatterjee, Adv.
Mr. Suchishmita Chatterjee, Adv.
Heard on : 15.01.2018, 07.02.2018, 08.05.2018
and 10.05.2018.
Judgment on : 6th July, 2018.
ARINDAM SINHA, J.
Petitioner by this writ petition seeks to espouse grievance of himself and others like him in seeking interference with decision of respondent no.1 University to not grant admission to them for post graduate study on the ground they do not possess valid graduate degree. By order dated 15th September, 2017 a co-ordinate Bench had granted leave to petitioner to prosecute the writ petition in representative capacity under Rule 12 of the Writ Rules and directed an interim measure as would appear from extract below:
"I have given my anxious consideration to the rival contentions of the parties. I am not deciding the writ petition on merits today. I quite appreciate the submission of Mr. Choudhuri that if the petitioners have not obtained degrees which are recognized by the University, they are not entitled to be admitted. However, this is one of the issues that this Court will have to decide at the final hearing of the writ petition. If finally the petitioners succeed, they would have lost out the classes and it would be practically impossible for the University to compensate the petitioners at that stage for the loss of classes. Hence, purely as an interim workable measurer, I direct the University to permit Bimal Maity, Saikat Sarkar, Soumen Bhattacharjee, Moumita Some Chowdhury, Dhiman Mondal, Ranu Sahu and Anindya Sundar Giri who ranked amongst the first 22 candidates in the final merit list to attend classes in the Course in question till November 15, 2017 or until further orders whichever is earlier. I make it absolutely clear that this order will not create any right or equity in favour of the said seven students. This order will not be treated as a precedent under any circumstances. It is purely out of concern for the educational career of the seven young students that I am passing this order. It is understood that in the event the writ petition fails, the said seven students would not insist on any kind of right or entitlement to continue in the University."
University Grants Commission (UGC) in exercise of power under section 26 of UGC Act, 1956 had formulated UGC (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003. Pursuant to said regulations, notice dated 7th June, 2012 had been issued regarding respondent no.4 University, confining it to grant degrees within State of Meghalaya. The notification was challenged by said respondent in High Court of Assam, Nagaland, Meghalaya, Mizoram and Tripura (Shillong Bench). A limited interim order dated 17th August, 2012 was made, text of which is reproduced below:
"17.08.2012 Heard Mr.SS Dey, learned senior counsel assisted by Mr. VGK Kynta, the learned counsel for the petitioner. Also heard Mr. SC Shyam, learned CGC and Mr. ND Chullai, learned senior GA appearing for the State respondents.
After hearing the learned senior counsel and the learned CGC, it appears that the sole question which falls the consideration in the writ petition is whether the UGC has the authority to pass the impugned public notice. After going through the provisions of the University Grants Commission Act, 1956 and the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003, we are of the prima facie view that such power is not vested with the UGC. We are therefore inclined to pass a limited stay order. Liberty is granted to the learned CGC to obtain instruction and place the same before this Court on the next returnable date. The prayer for interim order will be considered on 31.08.2012. Till then, the impugned order dated 7.6.2012 (Annexure 2) in so far as the petitioner University is concerned shall not be given effect to."
Mr. Mitra, learned senior advocate appeared on behalf of petitioner and submitted, during subsistence of said interim order dated 17th August, 2012 there was no bar on respondent no.4 to grant affiliation to proforma respondent no.5, latter being an institute situate in Kolkata. Said institute obtained affiliation from respondent no.4 and conducted course study to which petitioner got admitted in year 2014. Respondent no.4 granted graduate degree to his client in year 2017. Since then his client and others have been pursuing post graduate course study in respondent no.1 University pursuant to interim order but have not been allowed to take end semester examinations.
He submitted, when on 15th December, 2015, writ petition of respondent no.4 was dismissed, same cannot in any way affect petitioner or his batch mates. He relied on Martin Luther Christian University Act, 2005 under which said respondent was established. He relied upon sections 4(3), 6(2), 8(1)(iv) and (v) of said Act. The provisions are reproduced below:
"4(3) The campuses of the University shall be at any place within the state or Meghalaya with its headquarters at Mawphiang, East Khasi Hills, Meghalaya and it may have campuses or Regional Centres, Study Centres anywhere in India or abroad with approval of the Government of Meghalaya.
6(2) The University may with the prior approval of the Board of Governors, affiliate any college or other Institution.
8(1) (iv) To institute degrees, titles, diplomas, certificates and other academic distinctions;
(v) To hold-examinations and to grant and confer degrees titles, diplomas, certificates and other academic distinctions on persons who shall have pursued and passes an approved course or study in Constituent Colleges, Autonomous Colleges. Affiliated Colleges, Approved Colleges and Study Centres of the University, subject to such conditions as the University may determine and to withdraw any such degrees, titles, diplomas, certificates and other academic distinctions on good and sufficient cause."
He submitted, under section 12A sub-sections (4) to (7) of UGC Act, 1956, UGC is to take all such steps as it may consider proper for safeguarding interest of the students concerned regarding contravention by a college of the provisions of sub-section (3) in section 12A. He next relied on UGC (Affiliation of Colleges of Universities) Regulations, 2009 to regulation 8.4 which is reproduced below:
"8.4 If the University decides to withdraw the affiliation of the college, or the affiliation stands terminated by the order of the University, temporarily or permanently, such decision shall not affect the interests of the students of the college who were on its rolls at the time of issue of the order till they pass out the normal duration of programmes to which they are registered at that time. The University/Government shall have the duty to alleviate the educational future of the affected students in an appropriate manner as per its decision."
Degrees of petitioner and his batch mates were granted in the year 2017. Till before that or even at present there has been no step taken by UGC, under regulations of 2009 to cancel affiliation of proforma respondent no.5. Even if UGC now embarks on a procedure to cancel affiliation, interest of students must be safeguarded as provided by the said rules and declared to be so by Supreme Court. He submitted further, UGC did not have the power or authority to cancel a degree conferred or granted. He sought interference.
Mr. Chaudhuri, learned advocate appeared on behalf of respondent no.1, University of Kalyani. He relied on several judgments to oppose interference by Court.
i) Guru Nanak Dev University vs. Parminder Kr. Bansal and another reported in (1993) 4 SCC 401 as also AIR 1993 SC 2412. In that case, Supreme Court found that High Court by its interim orders had directed admission of two respondents to internship course with effect from 1st April, 1992, on which date, admittedly, they did not possess the required eligibility. They had not passed MBBS examination. Inter alia, on those facts Supreme Court said as follows :-
"6. Sri Gambhir is right in his submission. We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as 3 cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The Courts should not embarrass academic authorities by itself taking over their functions."
ii) State of Tamil Nadu and others versus St. Joseph Teachers Training Institute and another reported in (1991) 3 SCC 87. This case reached Supreme Court on some Teachers' Training Institutions in Tamil Nadu not having been accorded recognition by Education Department of Government of Tamil Nadu. In that context a passage is extracted from the judgment :-
".......permission was granted to the students of an unrecognised institution to appear at the examination, it would amount to encouraging and condoning the establishment of unauthorised institutions. The court declared that the jurisdiction of this Court under Article 32 or of the High Court under Article 226 of the Constitution should not be frittered away for such a purpose. In A. P. Christians Medical Educational Society v. Government of A. P. a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The court observed that any direction of the nature sought for 4 permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law."
iii) Judgment dated 15th May, 2014 in AST 225 of 2014 (The Registrar, The University of Calcutta & Anr. vs. Subrata Mondal & Ors.). A Division Bench of this Court while dealing with appeal from an interlocutory order found it was apparent that the qualification attained by appellant before it is not recognized one by UGC and University concerned. Even if it was held to be recognized University, it was not allowed to impart education by campus/study centre. Thus, in the considered opinion of the Division Bench, on the basis of such qualification, writ petitioner therein could not have secured the admission at all.
iv) Judgement dated 29th April, 2016 in W. P. 8292 (W) of 2015 (Chayanika Bhattacharya vs. University of Calcutta & Ors.) delivered by a learned single Judge of this Court. Mr. Choudhuri relied on, inter alia, the following passage in the judgment :-
"The petitioner does not come within the first limb of the qualification. He qualifies as a master degree holder provided the Master degree held by him is valid. The respondent no.6 is a university established by the Kavikulaguru Kalidas Sanskrit Vishwavidyala (University) Act, 1997."
Mr. Gupta, learned advocate appeared on behalf of UGC and relied on paragraph 8 onwards of affidavit-in-opposition filed on behalf of his client. He also relied on lists of institutions approved by UGC for academic years 2015-2016 and 2016-2017 to submit, name of institution from which petitioner did course study for getting degree from respondent no.4 does not figure in those lists. He submitted, pursuant to regulations of 2003, formulated in exercise of powers under section 26 of the UGC Act, 1956, notification dated 7th June, 2012 had been issued in respect of respondent no.4 University, confining it to grant degrees within State of Meghalaya. That notification was challenged by said university itself. He handed up copy of judgment dated 15th December, 2015 in WP (C) no. 216/2012 (Martin Luther Christian University versus UOI and Ors.) by which such challenge by writ petition was dismissed.
He also relied on judgment dated 19th May, 2017 in public interest litigation W. P. 13987 (W) of 2016 3 (Ashok Kumar Nandy versus UOI and Ors.) delivered by a Division Bench of this Court, in particular to paragraph 11. The said paragraph is extracted below:-
"11. The supremacy of UGC, an authority created under the UGC Act, 1956, passed by Parliament under Entry 66 List I of the Seventh Schedule to the Constitution of India, in the matter of coordination and determination of standards of education in the country, stands settled. The validity of Regulations 2003 has been upheld in Prof. Yashpal case (supra) and, therefore, there can be no doubt that the universities offering distance education programme are mandatorily required to follow the same."
He then relied on judgments of Supreme Court in the case of University Grants Commission and another versus Neha Anil Bobde (Gadekar) reported in (2013) 10 SCC 519, in particular paragraph 31 and Prof. Yashpal and another versus State Of Chhattisgarh and Others reported in (2005) 5 SCC 420, on paragraphs 55, 60 and 64.
Mr. Mitra in reply submitted, none of the decisions relied upon by Mr. Choudhuri or Mr. Gupta were applicable to the facts of his client's case. Referring to Prof. Yashpal (supra) he submitted, on the contrary even Supreme Court had protected the interest of students. UGC does not have the power to cancel a degree. As such his client and others are entitled to interference of Court.
Case made out of petitioner is that proforma respondent duly obtained affiliation from respondent no.4. There has been no proceeding initiated to withdraw the affiliation, same not having been terminated either temporarily or permanently. Petitioner and others completed graduate degree course study and therefore were also duly awarded post graduate degree by respondent no.4 in year 2017. UGC has not initiated any proceeding under UGC Act, 1956 to cancel degrees granted to petitioner and others as having had been granted in contravention of provision of section 22 of the Act.
Vires of any provision of UGC Act, 1956 or rules of 2003 or 2009 framed thereunder or Martin Luther Christian University Act, 2005 is not under challenge. Notice dated 7th June, 2012 denuded respondent no.4 of right to confer or grant degrees in respect of colleges or institutions situate outside State of Meghalaya. The position was altered on 17th August, 2012 by said limited interim order passed by said High Court. Respondent no.4 in obtaining interim order asserted its right to be able to confer or grant degrees in respect of all institutions and colleges affiliated to it whether within or without State of Meghalaya. According to petitioner, proforma respondent no.5 obtained affiliation during subsistence of interim order and petitioner and others admitted to such affiliated institution in year 2014. On 15th December, 2015 writ petition of respondent no.4 was dismissed by said High Court. Position on or after 7th June, 2012 till before 17th August, 2012 was restored to operate. Petitioner and others carried on graduate course study to obtain degree granted by respondent no.4 in year 2017.
In year 2017 respondent no.4 did not have the right to confer degrees to students of proforma respondent no.5. The degrees granted cannot be called degrees as they were not conferred by respondent no.4 as covered by sub-section (1) of section 22 in UGC Act, 1956, in relation to proforma respondent no.5 as hit by said notice dated 17th June, 2012. In the premises, contention of petitioner and others that UGC does not have the right to cancel a degree is not a question that need be gone into for the purpose of adjudication of the writ petition.
In the facts of this case there is no withdrawal of affiliation. The affiliation granted by respondent no.4 to proforma respondent no.5 pursuant to interim order dated 17th August, 2012 stood obliterated with dismissal of the writ petition on 15th December, 2015. Rule 8.4 of UGC (Affiliation of Colleges by Universities) Regulations, 2009 is not attracted or applicable. Relied upon provisions of Martin Luther Christian University Act, 2005 have also been urged as being in aid of petitioner and others but said Act in section 51 provides as follows:
"51. Not withstanding anything contained in this Act, the establishment, maintenance of standards and any other matter concerning this University including affiliation of Colleges, constituent Colleges, Study Centres and Regional Centres shall be subject to the UGC (Establishment and Maintenance of Standards in Private Universities) Regulation 2003 as amended from time to time and any other Regulation or direction as may be issued by the UGC from time to time."
Respondent no.4 under its establishing Act was mandated to conduct itself subject to UGC regulations of 2003, to enforce which said notice dated 7th June, 2012 had been issued. This Court does not find application of sub-sections (4) to (7) in section 12A of UGC Act, 1956 as no case has been made out by petitioner of contravention by proforma respondent no.5 of any provision of sub-section (3) of section 12A. This is an admitted position since the institution was made proforma respondent. Authorities relied upon by respondents are not applicable to case made out of petitioner and others.
For reasons aforesaid the writ petition is found to be without merit and is accordingly dismissed. However, interim order dated 15th September, 2017 will operate for 3 weeks after which it shall stand vacated.
(ARINDAM SINHA, J.)