Tuesday, 16 August 2016

Whether resolution passed by UGC regarding distance learning course is statutory in nature?

As regards the status and legal position of
the UGC, it was held that UGC Act, 1956, under which
it has been created, has a supervening influence over
all other Legislations on the subject of education for
maintenance of minimum standards in the country and
indisputably governs Open University also. Thus, the
resolution adopted in the 40th Meeting of the DEC dated
08-06-2012, Annexure P34, to confine the territorial
jurisdiction of the Private Universities within the
geographical limits of the States of its locations, having
been taken as a consequence of a policy decision of the
Government of India, it cannot be held to be
unauthorised and invalid. The policy decision
ultimately crystallised in the form of Order dated 29-
12-2012, Annexure R4. This Order having been issued
by the Ministry of Human Resource Development, 

Department of Higher Education, Government of India,
Respondent No.1, in exercise of its powers under SubSection
(1) of Section 20 of the UGC Act, 1956,
assumes a statutory character and would be considered
as part of the main Statute, i.e., UGC Act, 1956, and
binding upon all Universities irrespective of whether the
other Statutes including the ones under State
Legislations provide otherwise. This is so far as the
questions of law are concerned.
THE HIGH COURT OF SIKKIM : GANGTOK

S.B. : HON’BLE MR. JUSTICE S. P. WANGDI, JUDGE

WP(C) No.08 of 2015
Petitioners : 1. Mr. Pralhad Dani Chhetri,


 versus
Union of India


(29th June, 2015)
Citation:AIR 2016 (NOC) 560 skm

1. The Petitioners in the Writ Petition are those
who had passed out from the Sikkim Manipal
University, Respondent No.4, as students in the
Distance Education Mode (for short “DEM”) run by it at
their Study Centre situated in Kathmandu, the capital
of our neighbouring country Nepal, of which they are
the citizens. While the Petitioners No.1, 3 and 4 have
been awarded with the degrees of Bachelor of Science
in Information Technology on 05-05-2010, 24-12-2013
and 02-11-2006 respectively, the Petitioner No.2
completed his Master of Science in Information
Technology and was awarded the degree on 04-04-
2014. After successful completion and award of
degree in BSc(IT), the Petitioner No.4 has been
pursuing her MSc(IT) at the same Centre at
Kathmandu, Nepal.
2. The Petitioners are aggrieved by letter dated
11-05-2011, Annexure P32, of the Ministry of Human 

Resource Development, Department of Higher
Education, Government of India, Respondent No.1,
addressed to the Royal Danish Embassy, informing that
no Study Centre of the Respondent No.4-University had
been approved either by the Distance Education Council
(for short “DEC”), Respondent No.3 or the University
Grants Commission (for short “UGC”), Respondent
No.2, and that the degrees/programmes offered in the
Distance Mode by it were not recognised under the
Indian Law and could not be equated on terms with an
Indian degree/programme, resulting in their admissions
for higher studies being refused by the Governments of
Denmark and Australia.
3. They are also aggrieved by Public Notice
dated 27-06-2013, Annexure P39, issued by the
Respondent No.2-UGC, announcing that a University
established or incorporated by or under a State Act
shall operate only within the territorial jurisdiction
allotted to it under its Act and in no case beyond the
territory of the State of its location.

4. The primary contention of the Petitioners is
that the Respondent No.4-University having been
permitted by the UGC to run its Distance Education
Programmes (for short “DEP”) in the year 2001 and by
the Indira Gandhi National Open University (for short
“IGNOU”), Respondent No.3, of which the DEC is an
Authority created under Statute 28 of the IGNOU Act,
1985, it was not permissible for the UGC to now restrict
the DEP of the Respondent No.4-University under the
DEM retrospectively in the manner in which it was
being done. The action of the UGC, as per the
Petitioners, was arbitrary and grossly unjust to them
and those similarly circumstanced, who had undergone
the DEP and awarded degrees by the Respondent No.4-
University, after having spent several valuable years of
their lives.
5. As the factual and legal aspects of this case
are the very ones involved in WP(C) No.04 of 2013, in
the matter of Sikkim Manipal University vs. Indira Gandhi
National Open University and Others, which was finally
heard and disposed of vide judgment dated 26-06-2015
of a Division Bench of this Court where the 

undersigned, Wangdi, J., was a part, we need not go
into those to avoid prolixity.
6. It is also relevant to note that Public Notice
dated 27-06-2013, Annexure P39, impugned in the
present case, was also assailed in the said Writ Petition.
7. As regards the status and legal position of
the UGC, it was held that UGC Act, 1956, under which
it has been created, has a supervening influence over
all other Legislations on the subject of education for
maintenance of minimum standards in the country and
indisputably governs Open University also. Thus, the
resolution adopted in the 40th Meeting of the DEC dated
08-06-2012, Annexure P34, to confine the territorial
jurisdiction of the Private Universities within the
geographical limits of the States of its locations, having
been taken as a consequence of a policy decision of the
Government of India, it cannot be held to be
unauthorised and invalid. The policy decision
ultimately crystallised in the form of Order dated 29-
12-2012, Annexure R4. This Order having been issued
by the Ministry of Human Resource Development, 

Department of Higher Education, Government of India,
Respondent No.1, in exercise of its powers under SubSection
(1) of Section 20 of the UGC Act, 1956,
assumes a statutory character and would be considered
as part of the main Statute, i.e., UGC Act, 1956, and
binding upon all Universities irrespective of whether the
other Statutes including the ones under State
Legislations provide otherwise. This is so far as the
questions of law are concerned.
8. The anxiety of the Petitioners and their
predicament also appears to have been taken care of
in Sikkim Manipal University (supra), as would appear
from the following portions of the judgment in that
case:-
“24(i). Before finally concluding, it is
essential to record here that some
students of the Petitioner-University who
have undergone studies in the DEP have
approached this Court as Intervenors
and were represented by Mr. P. N. Misra,
Learned Senior Counsel. The
Intervenors are students who passed out
degree courses from the PetitionerUniversity
through their Study Centre set
up in Nepal, a foreign country. They
have approached this Court in the
present proceedings as the degrees
issued by the Petitioner-University were
not recognised by the Australian
Government where they intended to
pursue higher studies.

(ii) On a perusal of the
application for intervention and the
records, the Intervenors appear to be
students who had commenced with their
degree courses on and from the year
2010. While the Intervenors No.1, 2 and
3 had commenced with their courses
with effect from August, 2010 to July,
2013, the Intervenor No.4 from February
2011 to January, 2013. The Intervenors
No.1 and 3 had undergone Bachelor of
Business Administration (BBA),
Intervenor No.2 had undertaken bachelor
of Science in Information Technology
(BScIT) and the Intervenor No.4 in
Master of Business Administration (MBA)
examinations. Thus, having undergone
the courses when the PetitionerUniversity
was offering programmes on
the recognition granted by the
Respondent No.1 through its Chairman
for 3 (three) academic years
commencing from 2009-10 to 2011-12,
which was ratified by the Council in its
35th Meeting, they cannot be denied
recognition of the degrees awarded to
them by the Petitioner-University. This
fact also appears to have been conveyed
to the Respondent No.1 by the
Petitioner-University through its letter
dated 25-10-2012, Annexure P27, apart
from the fact that it had directed a freeze
on new admissions on 09-10-2012 even
before direction to that effect was issued
by the Respondent No.1 in its letter
dated 10-10-2012, Annexure P26.
25(i). That apart, by order dated
22-02-2013, this Court in this very
proceeding had stayed the operation of
the condition “but not beyond the
boundary of their respective States”
contained in the minutes of the 40th
Meeting of the DEC held on 08-06-2012
and that any consequential directions in
this regard shall remain stayed and
further that the Petitioner-University
shall be permitted to continue to act in
accordance with the communication
dated 15-10-2009, Annexure P17. This
interim order which was extended by 
order dated 19-07-2013 was confirmed
on 07-11-2013 after impleadment of the
UGC-Respondent No.3 as a party after
notice.
(ii) By order dated 13-04-2015
of this Court in CM Appl No. 33 of 2015
had further confirmed the aforesaid two
orders, the relevant portion of which is
as follows:-
“6. At this stage, Mr.
Misra submits that by making an
observation of de-recognition of
the degrees of the intervenors,
their job prospects are being
jeopardized and they are being
deprived of prosecuting their
further studies, therefore, some
protection may be granted to
them.
7. There is no
occasion for this Court to
deliberate on this point in an
application field for permission to
intervene in the main writ
petition. However, it is observed
that by interim order dated
22.02.2013 passed in W.P. (C)
No.04/2013, it has clearly been
held by this Court that during the
pendency of the Writ Petition, the
operation of the condition “but
not beyond the boundary of their
respective States”, which clearly
relates to the territorial
jurisdiction of the PetitionerUniversity,
contained in the
Minutes of 40th Meeting of the
Distance Education Council of
Indira Gandhi National Open
University held on 08.06.2012,
and any consequential direction
in this regard shall remain stayed
and the same order by a
subsequent order dated
07.11.2013 has also been held to
be binding on all the parties
including the University Grants
Commission (UGC). We are of
the view that the earlier two
interim orders would make the
situation very clear and it is
expected that all the parties
concerned, including the UGC,
would implement the said orders
in their letter and spirit.” 
(iii) None of the Respondents
have taken any steps to approach this
Court for either alternation/ modification
or vacation of this order. They also do
not appear to have approached the
Hon’ble Supreme Court to get the above
orders set aside. Thus these orders
having been confirmed, are held to be
binding on all parties including the
Respondent No.3 as observed in order
dated 13-04-2015.
(iv) So far as the case of the
Intervenors are concerned, considering
the facts and circumstances set out
above, we are of the view that their
degrees should stand protected as valid.
This order would also apply to all the
students who are in similarly placed as
the Intervenors although they are not
before us.”
[underlining mine]
9. As the Petitioners had undergone the courses
during the period when the DEP of the Respondent
No.4-University was being run under valid recognition
of the UGC and the DEC, their cases would be fully
covered by the aforesaid decision.
10. It is relevant to note that there are 3 (three)
categories of students who stand thus protected. They
are
(i) those who had commenced and completed
their DEP anytime prior to the academic session 2011-
12; (ii) those who had commenced with their DEP prior
to the academic session 2011-12 but, completed after 
that; and (iii) those who were admitted to the DEP any
day after the interim order of this Court dated 22-02-
2013 passed during the proceedings of Sikkim Manipal
University (supra) by which operation of the condition
“but not beyond the boundary of their respective
States” stipulated in the decision of the DEC in its 40th
Meeting dated 08-06-2012, Annexure P34, was stayed
and the Respondent No.4-University was permitted to
continue to act in accordance with the communication
dated 15-10-2009, Annexure P27, subject to
compliance of the terms thereof. The case of the
Petitioners would certainly fall within the purview of the
judgment in Sikkim Manipal University (supra) extracted
above.
11. Apart from the above, the interim order of
stay dated 22-02-2013 that was directed to be
continued by a subsequent order dated 07-11-2013,
was later confirmed by order dated 13-04-2015 in CM
Appl No.33 of 2015 arising out of WP(C) No.04 of 2013
in Sikkim Manipal University (supra). Therefore, as a
natural corollary and by necessary implication, the
degrees in respect of the students, who were admitted 
to the DEP of the Respondent No.4-University after the
order of stay, one of whom appears to be the Petitioner
No.4, shall also be protected.
12. The information conveyed in letter dated 11-
05-2011, Annexure P32, issued by the Respondent
No.1 to the Royal Danish Embassy, being in conflict
with the decision of the DEC, firstly, in ratifying the
decision of its Chairman granting recognition to the DEP
of the Respondent No.4-University for the academic
years 2009-10 to 2011-12 and, secondly, its own grant
of recognition, be it provisional or regular, for the
preceding years, would be rendered a nullity, non est
and, therefore, unenforceable and is accordingly,
ordered so.
13. Consequently, the DEP of the Respondent
No.4-University undergone by the Petitioners and the
degrees awarded to them are treated as valid and
deserving to be equated on terms with an Indian
degree/programme.
14. It is needless to state that this order would
also apply to all the students who are similarly 
placed as the Petitioners although they are not before
us.
15. In the above facts and circumstances and for
the reasons aforesaid, the Writ Petition is hereby
allowed.
16. No order as to costs.
 Sd/-
 ( S. P. Wangdi )
 Judge
 29-06-2015


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