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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM

AND ARUNACHAL PRADESH)

WP(C) NO.5831/2013

1. Punal Kumar Das S/o Sri Tarun Chandra Das, R/O- Village Dakshin Ganatgari,

P.O- Chakchaka Bazar, P.S- Sorbhog, Dist- Barpeta, Assam.

2. Sri Udayan Sarma, S/o Mr. Probin Sarma, R/O- Village Bongaon,

P.O- Bongaon, P.S- Kamargaon, Dist- Golaghat, Pin- 785611, Assam.

3. Hemen Kumar Das S/o Lohit Kumar Das, R/O- Village Madanpur,

P.O- Loharghat, P.S- Palashbari, Dist- Kamrup(R), Pin- 781120,Assam.

4. Tarique Mahmood S/o Sk. Sultan Mahmood,

R/O- Village Azara, Hathkhowapara, Opp. Of GIMT Engineering College, P.O- & P.S- Azara, Dist- Kamrup ( R) Assam.

5. Shri Taufique Ahmed S/o Shri Faziuddin Ahmed, R/O- Village Moidomia,

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P.S- North Lakhimpur, Dist- Lakhimpur, Assam.

6. Madhumita Barman D/o Lt. Prasenjit Barman, R/O- B.G.R. Township, Quarter No. 521 A,

P.O & P.S- Dhaligaon, Dist- Chirang BTAD, Assam.

………………………… Petitioners - Versus- 1. The State of Assam, represented by the

Commissioner and Secretary, Higher Education, Assam, Dispur, Guwahati-6.

2. The Director, Higher Education, Assam,

Kahilipara, Guwahati-19. 3. The Cotton College State University, represented

by the vice Chancellor CCSU, Panbazar Ghy-1. 4. The Registrar, Cotton College State University,

Panbazar Ghy-1. 5. The Officer of Special Duty, CCSU, Panbazar

Ghy-1. 6. Sikkim Manipal University, represented by the

Vice Chancellor, 5th mile, Tadong, Gangtok, 737102, Sikkim, India.

7. The Registrar, Sikkim Manipal University, 5th mile,

Tadong, Gangtok, 737102, Sikkim, India. 8. The Head of the Center cum-Managing Director,

Sikkim Manipal University, T.R. Phukan road, Choladhara, Jorhat.

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9. The Kuvempu University, represented by the Vice Chancellor Jnana, Sahyadir, Shankaraghatta-577451, Shimoga District, Karnataka, India.

10. Head of the Center cum Managing Director, NIIT,

Panbazar, (Under Kuvempu University) Ganeshguri, Ghy-6.

11. The Registrar, Kuvempu University, Jnana,

Sahyadir, Shankaraghatta-577451, Shimoga District, Karnataka, India.

12. The University Grants Commission, represented by

the Secretary, New Delhi-1. ……………… Respondents BEFORE

HON’BLE MR. JUSTICE B.K. SHARMA

For the petitioners : Mr. M.K. Choudhury, Adv MR. M.U. Mondal, Adv For the respondents : Mr. D. Saikia, AAG Mr. R. Chakraborty, Adv Mr. B. Choudhury, Adv Mr. A. Chamuah, Adv Mr. P.K. Goswami, Adv Mr. B. Jha, Adv Mr. T.P. Rajendra Kr. Adv Mr. D. Choudhury, Adv Ms. U. Bhattachryee , Adv Mr. B. Bora, Adv Date of hearing : 30.01.2014 Date of Judgment : 14.03.2014

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JUDGMENT AND ORDER (CAV)

1. The challenge in the writ petition filed by six

petitioners is the Annexure-K notification dated 19.09.2013 of

the Cotton College State University (respondent No.3), by

which on the basis of the purported clarifications given by the

University Grants Commission (UGC) vide public notice dated

27.06.2013, has cancelled the admission of the petitioners to

the MCA Degree Programme under the University. For a ready

reference, the impugned notification is reproduced below:-

“The University Grants Commission (UGC),

vide its public notice no. , F. 27- 1 /201 2 (CPP- II)

dated 27th June, 201 3 has clarified that “a

central or State Government University can

conduct courses through its own departments, its

constituent colleges and/or through its affiliated

Colleges” and also “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”.

Besides, the notice also states that “no

University, whether central, state, private or

deemed, can offer its programme through

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franchising arrangement with private coaching

institutions even for the purpose of conducting

courses through distance mode”. In the said

notification, the UGC has also stated that “a

private university established under a state act

shall be a unitary university. A private University

may be permitted to open off campus centres,

off- shore campuses and study centres after five

years of its coming into existence subject the

fulfillment of conditions as laid down under UGC

(Establishment of Maintenance of Standards in

Private Universities) Regulations, 2003. As of

now, the UGC has not granted permission to any

Private University to establish off campus/ study

centre.

In view of the clarifications given by the

UGC vide the public notice mentioned above, the

provisional admission of students as listed

hereunder, to the MCA degree programme of

Cotton College State University based on degrees

obtained under circumstances not allowed by the

UGC stands cancelled. The fees collected from

these students shall be refunded.

1 . Ms. Madhumita Barman, Roll No. MCA 09/1 3

2. Mr. Taufique Ahmed, Roll No. MCA 1 2/1 3

3. Mr. Hemen Kumar Das, Roll No. MCA 1 3/1 3

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4. Mr. Rajkumari Rai, Roll No. MCA 1 5/1 3

5. Mr. Punal Kumar Das, Roll No. MCA 1 8/1 3

6. Mr. Rahul Dey, Roll No. MCA 1 9/1 3

7. Mr. Tarique Mahmood, Roll No. MCA 20/1 3

8. Mr. Udayan Sarma, Roll No. MCA 24/1 3”.

The impugned notification having been issued in

reference to the public notice dated 22.06.2013, the said

public notice (Annexure-G) is also reproduced below for a ready

reference:-

“The Commission has come across many

advertisements published in National Dailies

offering opportunities for the award of university

degrees though various franchise programmes

conducted by certain private institutions. These

private establishments claiming themselves as

study centres or learning centres of different

universities enroll students for various degree

programmes and also claim to be responsible for

teaching and conduct of examinations. The faculty

and the infrastructure belong to these private

agencies. The concerned university except

providing syllabus and teaching materials, has no

mechanism to monitor and maintain the academic

standards of education has led to widespread

criticism. The Commission has taken a serious view

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of these misleading advertisements appearing in

various newspapers.

It is, therefore, clarified for the information of

all concerned, including students and parents that:

(a) A Central or State Government University can

conduct through its own departments, its

constituent colleges and/or through its affiliated

Colleges;

(b) 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;

(c) The private universities and deemed universities

cannot affiliate any college or institution for

conducting courses leading to award of its

diplomas, degrees or other qualifications.

(d) No university, whether central, state, private or

deemed, can offer its programmes through

franchising arrangement with private coaching

institutions even for the purpose of conducting

courses through distance mode.

(e) All universities shall award only such degrees as

are specified by the UGC and published in the

official gazette.

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(f) The Universities shall conduct their first degree

and Masters Degree programmes in accordance

with the regulations notified by the Commission in

this regard.

In this connection, the students and the

general public are also hereby informed of the

following regulating provisions pertaining to

different types of universities.

A. UGC Regulations on Private Universities

A private university established under a state Act

shall be a unitary university, A private university

may be permitted to open centers, off shore

campuses and study after five years of its coming

into existence subject to the fulfillment of

conditions as laid down under UGC (Establishment

of & Maintenance of Standards in Private

Universities) Regulations, 2003. As of now, the

UGC has not granted permission to any Private

University to establish off- campus/study centre.

B. UGC Regulations on Deemed Universities

A Deemed University shall operate within its

Headquarters or from off campuses/ off- shore

campuses which are approved by the Government

of India through notification published in the

official gazette.

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In the case of distance education programmes, no

institution deemed to be university so declared by

the Govt. of India after 26th May, 201 0 [date of

publication of UGC (Institutions Deemed to be

Universities) Regulations, 201 0] is allowed to

conduct courses in the distance mode.

The institutions deemed to be universities declared

before 26th May, 201 0 are not allowed to conduct

courses in distance mode from any of its off-

campuses approved after 26th May, 201 0.

Approval for new courses and extension of

approval of the courses already run by the

Deemed to be Universities under distance mode

would be granted by the UGC subject to the

fulfillment of conditions as laid down by the UGC.

The UGC has not granted approval to any deemed

to be university study centres.

Any information/ clarification with regard to

recognition of Private Universities/ Deemed

Universities and the courses offered by them may

be obtained from JS (CPP- I) UGC, Bahadurshah

Zafar Marg, New Delhi.

C. Distance Education programmes of the Central

Universities and State Govt. Universities.

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The Central/ State Govt. Universities can

conduct courses through distance mode in

accordance with the provisions of their respective

Act and after the approval of the UGC.

The information relating to recognized

universities list of specified degrees and all the

relevant regulations/ instructions/ guidelines of

the UGC are available on UGC website:

www. ugc. ac. in.

The students are, advised not to take

admission in the unapproved Study Centres, Off-

Campus Centres, Franchisee Institutions, Colleges/

Institutions claiming to be affiliated with Private

Universities or Deemed Universities.

2. Basic Facts:-

The petitioners No.1, 3, 4, 5 and 6 have passed B.Sc

(IT) from Kuvempu University (respondent No.9) through NIIT

(respondent No.10), Panbazar and Ganeshguri Centres of

Guwahati. On the other hand, the petitioner No.2 has passed

the said course from Sikkim Manipal University (respondent

No.6) through the particular centre situated at T.R. Phukan

Road, Choladhora, Jorhat.

In response of the introduction of Master of Computer

Application (MCA) course for the season 2013-2014, the

petitioners submitted their application forms on 27.07.2013 for

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the admission to the said Course. They came out successfully in

the entrance examination held on 11.08.2013, results of which

were declared on 12.08.2013. Thereafter, they were admitted

to the MCA course on 17.08.2013 and started attending class

w.e.f. 19.08.2013.

3. According to the petitioners, both the Universities,

namely, Kuvempu and Sikkim Manipal having had the recognition

of the UGC, the B.Sc (IT) Degree awarded by them through

NIIT and the particular centre respectively are valid in the eye

of law and thus, the Cotton College State University could not

have issued the impugned notification dated 19.09.2013. In

paragraph 11 of the writ petition, the petitioners have also

stated that similarly situated students are doing their course

of MCA under various Universities such as Gauhati University,

Dibrugarh University, Tezpur University and even Cotton

College State University (who are in 2nd and 3rd Semester) and

as such, the admission of the petitioners base on the B.Sc (IT)

degree awarded by the said two Universities are also valid in

law.

4. In paragraph 12 of the writ petition, the petitioners

have contended that the public notice dated 27.06.2013 of the

UGC cannot have any retrospective application and the

petitioners having completed their B.Sc(IT) Course and

obtained the Degree in the year 2012, the said public notice

cannot be made applicable retrospectively. The petitioners have

further contended that the action of the University Authority

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in issuing the impugned notification is violative of Article 14 of

the Constitution of India and also the Principals of Natural

Justice as before cancellation of their admission to MCA

course, they were not provided with any opportunity of being

heard.

5. Stand of the Respondent No. 1 (state

Government in the Education Department): -

Opposing the writ petition, the State of Assam in its

affidavit filed through the Deputy Secretary, Education

(Higher) Department, has contended that the NIIT is neither a

University nor a College and that the petitioners having pursued

the B.Sc(IT) Degree under Kuvempu University and Sikkim

Manipal University through Off Campus Study Centers, their

B.Sc(IT) Degree is not recognizable and thus the following

public notice of the UGC referred to above, the Cotton College

State University Authority rightly issued the impugned order.

It has been contended that the petitioners could not have

obtained the Technical Degree of B.Sc(IT) involving laboratory

works through distance education mode, without undertaking

the said laboratory course.

6. The State Government has also referred to the

Annexure-1 Office Memorandum dated 01.02.2012 on the

subject of guidelines to be followed for obtaining of UGC

clarification in regard to M.Phil/P.hd. Clarification, which is

records below:-

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“OFFICE MEMEORANDUM

Sub: Guidelines to be followed for obtaining of

UGCX qualification in regards to M. Phil/

Ph. D qualification.

It has come to the notice of the

Government that some faculties working in

Government and Provincialised Degree Colleges as

well as Engineering and other Govt. Institutions of

Higher Education have got admitted in some of the

Universities who have affiliated Colleges and

started off- campus center(s) without proper

jurisdiction and which are running in violation of

UGCs Regulations. The Universities which are

conferring Degrees as per UGCs Regulation, their

particulars in the UGC website (www. ugc. ag. in). As

per UGC, the Universities are competent to award

Degrees as specified by the UGC under section 22

of the UGC Act only with the approval of the

Statutory Council, through their main campuses.

Where ever approval of the Statutory

council is not a pre- requisite to start a

programme, the Universities are required to

maintain the minimum standard regarding Academic

and physical infrastructure as laid down by the

Statutory Council.

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As per UGCs norm and guideline, a

University cannot affiliate an Institution/ College

as well as they cannot establish off campus

center(s) beyond the territorial jurisdiction of the

concerned State. If any faculty of the

Institutions and Colleges as mentioned above is

found to have procured or is perusing Higher

studies for Degrees in such institutions/ College do

not function as per UGC Guideline Grade, their

Degrees will not be treated as valid Degrees for

consideration for promotion to the next higher

Grade i. e. for placement of Sr. Grade/ Selection

Grade/ Associate Professor & Principal etc. and

also in case of appointment to any post of

faculties.

If any faculty is found to have been

continuing to pursue academic even after this

O. M. is notified, the matter will be dealt with as

per provisions of Disciplinary and Appeal Rule for

Violation of prescribed guidelines.

Further for enrollment as in- service for

higher studies during the service period approval

of proper authority is mandatory. If anybody is

found to violate the aforesaid requirement their

cases shall also be dealt with as per existing Rules

and Regulations of Government of Assam.

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S/d- H K Sharma, IAS

Commissioner & Secretary to the Govt. of Assam

Higher Education Department”.

7. Counter Affidavit of Respondent No. 1 2

(University Grants Commission): -

In the counter affidavit filed by the UGC, it has been

stated that the issue involved in the writ petition is the subject

matter of Distance Education Council (DEC), which was created

under the Indira Gandhi National Open University IGNOU)

Act, 1 985. It has further been stated that DEC has been

dissolved w.e.f. May, 2013 and its function and powers are now

vested/merged with the UGC. In paragraphs 18, 19, 20 and 23

of the counter affidavit, it has been stated thus:-

“That the deponent respectfully submits

that the moot question to be adjudicated in the

instant proceeding is that whether the B. Sc. (IT

Degree obtained by the Petitioners through

distance learning mode having franchising

arrangement with NIIT and other centre are valid

or not? To reply this question the answering

respondent places its response as follows:

a) The Universities viz. Sikkim Manipal University,

Sikkim and Kuvempu University, Karnataka had the

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provisional Institutional recognition from erstwhile

DEC under Distance Learning mode at the relevant

point of time.

b) But none of the Universities in India who offer

Distance Learning Course/Degree are empowered

to franchise study centres and if it is done then

the same will be illegal and without any authority.

c) Apart from the above, the Degrees awarded by

the said Universities would be valid provided the

programme was approved by the Statutory Body of

the concerned University.

1 9. That in the instant case as stated in

Paragraph 1 0 of the Petition that the Petitioners

had obtained their degrees from the said 2

universities having franchising arrangement with

NIIT at Guwahati and Jorhat. Considering the

same, since neither the University Grants

Commission nor the erstwhile DEC Approves or

Approved any study center for offering distance

learning programme, the degree awarded and/or

obtained through such mode will be invalid.

20. That for better appreciation of this Hon’ble

Court, the answering respondent begs to bring on

record some communications taken place between

the Kuvempu University and Sikkim Manipal

University and DEC.

A) KUVEMPU UNIVERSITY (KU):

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The DEC vide its letter No. DEC/2009/4938

dated 1 7/1 2/2009 while communicating

continuation of Provisional Institutional Recognition

clearly stated that “the Distance Education Council

Prohibits franchising of Study Centres. Thus your

Institution will not franchise any study center”

(Para 7 of the said letter). The UGC vide its

letter dated 1 6/09/201 3 has once again

categorically communicated the KU that though

their distance learning programmes were approved

during Institutional recognition but franchising

arrangement for study center or with any other

organization was never approved. The bare perusal

of the aforesaid letter would go to show that at

no point of time the so called study centers are

approved by DEC/University Grants Commission to

offer any degrees through distance learning

programmes. It can also be transpired from the

above referred letter that the KU, still, has been

asking for approval (by its letter dated

1 1 /09/201 3) from the DEC /University Grants

Commission to adopt the policy of franchising

study centers. Thus, any degree offered/awarded

through such manner will be invalid.

B) The status of Sikkim Manipal University is no

better than the KU or any other University. The

erstwhile DEC time and again has been

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communicating the SMU as regard the recognition

of their University and manner of offering degree

through distance learning mode. The letter dated

1 5. 1 0. 2009 vide letter No.

DEC/Recog/2009/3947 was explicitly dealing with

the said matter and it was made clear that the

franchising of study centers are strictly

prohibited (Paragraph 7 of the said letter dated

1 5. 1 0. 2009)”.

23. That considering the above situations and also

considering the admissions made by the Petitioners

that their degrees were obtained under

franchising arrangement with NIIT in Assam, it is

submitted that those degrees are not valid.

8. Counter affidavit of Kuvempu University

(Respondent No. 1 1 ): -

Justifying the Degrees conferred to the petitioners,

the Kuvempu University in its affidavit has highlighted as to

how the University came into existence as a State University

under the Karnataka State Universities Act, 1 976, replaced

by the Karnataka State University Act, 2000 recognized by

the UGC u/s 2(f) and 12(b) of the UGC Act 1956. It has been

contended that the Kuvempu University has been offering

learning and education through distance mode by obtaining the

institutional recognition to the University in 2007-08 by the

then DEC of IGNOU. It has been categorically stated that the

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institutional recognition was valid till the programme wise

recognition was granted by the DEC after conducting inspection

under its guidelines. It is the categorical stand of the

university that there was institutional recognition for B.Sc(IT),

M.Sc(IT) and B.Sc(ITIM) Courses.

In paragraph-5 of the counter affidavit, it has been

stated that in a letter dated 16.09.2013, the UGC clarified that

the DEC of IGNOU had accorded Provisional Institutional

recognition to the university in 2008-09 in respect to the

programmes approved by the Statutory Bodies of the

university through distance mode. It was also clarified by the

said letter that the institutional recognition was valid till such

time programme wise recognition was granted by the DEC after

conducting inspection under its guidelines. Referring to the

inspection conducted by the DEC on 28.08.2011 and 29.08.2011

and its recommendations, the Kuvempu University in its

affidavit has stated that the said recommendations were

placed before the Tripartite Committee of UGC-AICTE-DCE

and thereafter before the DEC, which approved 31 programmes

conducted by the University and the same was communicated

vide letter dated 27.08.2012. Referring to this letter

Annexure-2, the categorical stand of the University is that it is

only in this letter dated 27.08.2012, the aforesaid three

courses, namely, B.SC(IT), M.SC(IT) and B.Sc(ITIM) courses

were not included, meaning thereby that for imparting the said

courses, the University had the required permission.

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In Paragraph-6 of the counter affidavit, the University

has referred to the Annexure-3 communication dated

16.09.2013 of the UGC, by which it was clarified that the

recognition of the aforesaid three programmes by Kuvempu

University in distance mode, during the period of educational

institutional recognition leading to award of Degrees would be

valid provided that the programmes were approved by the

Statutory Bodies of the University till the period the

University received programme wise recognition of the

erstwhile DEC. As regards the programme wise recognition, it

has been contended that the aforesaid three courses were

approved by the Statutory Bodies of Kuvempu University and

appropriate statutes were also framed empowering the

University to start the said courses, which had the approval of

the Chancellor of the University and thus, the enrollment of

the petitioners to the B.SC(IT) course conducted by the

University under Distance Education Mode (DEM) and award of

the degrees to them during the year November/December,

2012 is valid.

9. Affidavit of Respondent No. 1 0 (NIIT): -

Supporting the B.Sc(IT) Degree, obtained by the

petitioners, it has been stated that the respondent No.10 is

widely recognized as the pioneer in creating the non-formal

Information Technology (IT) education movement in India,

which ultimately led to the creation of trained software

professionals, who fuelled India’s eminence in IT in the world.

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The affidavit has referred to the numerous achievements of

respondent No.10. Referring to the particular programme i.e.

B.Sc(IT), it has been state in the affidavit that the respondent

No.10 arrived at an arrangement with the Kuvempu University in

order to facilitate those students of respondent No.10, who

wished to undergo a formal academic programme. In the said

arrangement, only two programmes relating to Information

Technology i.e. B.Sc(IT) and M.SC(IT), which was relevant for

NIIT’s students were offered by the respondent No.9 at its

study centers operated from the premises of the respondent

No.10. The facilities at NIIT premises are independently

evaluated by the respondent No.9 on a case to case basis and

accordingly the respondent No.9 is to decide whether the said

facility as Kuvempu University Study Centre should be used or

not. According to this respondent, the petitioners enrolled with

NIIT, met the academic prerequisite and requirements of the

respondent No.9 at the Kuvempu University Study Centre.

In Paragraph-9 of the counter affidavit, the NIIT has

contended that it has provided the use of its infrastructures

to Kuvempu University for use of the same as Kuvempu

University Study Centre, since it had already been into the

training on IT since 1982 and it had the high quality

infrastructures like Classroom, Library, Computer Laboratories,

Licensed Software and necessary technical facilities. It has

also been stated that eligibility for admission into the B.Sc(IT)

and M.Sc(IT) programmes are determined by respondent No.9

as per the rules and the students so enrolled are directly under

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the respondent No.9 strictly in accordance with their rules and

regulations. The programme fees are also directly collected by

the respondent No.9 from all such students and the Roll

Numbers, Identity Cars etc are also issued by the University.

Further narrating the course of study, it has been

contended in the affidavit that study materials are also

provided by the respondent No.9 and their examinations are

also conducted directly under respondent No.9. In paragraphs

10, 11, 12, 13, 18, 19 and 20 of this affidavit, it has been stated

thus:-

“1 0. I further state that the aforesaid

arrangement was distinct from the case of

franchising. Firstly, the respondent No. 1 0 only

provided its infrastructure and support and all the

remaining activities were undertaken by the

respondent No. 9. Secondly as stated above, the

arrangement was entered only for the sake of

Bonafide students as opposed to offering the

courses to public at large on behalf of respondent

No. 9. Thirdly, it was a case of selective offering

of aforesaid BSc(IT) and MSc(IT) programmes

which gelled with the respondent No. 1 0’s own

activity of offering IT training as opposed to

acting as franchised study center which normally

offers any and every program of the franchisor to

the public without making any distinction.

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Fourthly, normally a franchisee- franchisors

relation operates in a paradigm where in the

franchisee carries out franchisors activities

exclusively where as in the instant case the

respondent No. 1 0 is primarily into offering skill

development programs in IT and to complement

the said activity the respondent No. 1 0 arrived at

an arrangement with respondent No. 9. Thus both

these activities are concurrently being carried out

at the premises of respondent No. 1 0. Fifthly,

the entire arrangement arrived at between the

parties including the provision lateral entry was a

unique effort which is not in the case of any

franchisee- franchisor relationship. Last but not

the least it was predominantly under these

prevailing circumstances that the aforesaid

arrangement never created any discomfort to any

of the regulatory bodies including respondent No.

1 2 and DEC. Neither respondent No. 1 0 nor

respondent No. 9 ever received or were called for

any clarification in this regard by any of the

respondents.

1 1 . I state that the respondent No. 9 has been

established by an Act of State Legislature under

the Karnataka State Universities Act, 1 987 ( in

short KSU Act) and has been recognized by the

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respondent No. 1 2 vide a certificate to that

effect which was issued on 21 . 01 . 2003.

1 2. I state that on the other hand the erstwhile

Distance Education Council constituted under the

IGNOU Act, 1 985(in short DEC), which later came

under control of the respondent No. 1 2 vide

notification dated 29. 1 2. 201 0 issued by the

Central Government and got rechristened as

Distance Education Bureau had accorded

institutional recognition to the respondent No. 9

from the academic year 2007- 08 till 201 1 - 201 2

vide different communications issued by DEC from

time to time. By virtue of the said institutional

recognition it was confirmed that the respondent

No. 9 was accorded recognition for offering

programs approved by the statutory bodies, (i. e.

the Directorate of Distance Education) of

respondent No. 9. It was also conveyed that DEC

had decided not to insist on territorial jurisdiction

to be followed by the institutions in offering

programs through distance mode and the

respondent No. 9 was left to be governed by its

own Acts and Statutes on the said issue.

1 3. I state that the KSU Act authorizes the

respondent No. 9 to offer programs in distance

education mode beyond the state of Karnataka.

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Furthermore, the Rules and Rulations framed by

the Directorate of distance Education also

authorized the respondent No. 9 to inter alia

offer the BSc (IT) and MSc (IT)

Programs in the distance mode. Accordingly

respondent No. 9 stood recognized with the

statutory sanction to offer BSc (IT) courses to

the petitioner Nos. 3, 4 and 6 in the year 201 0

and for that matter even in the year 201 1 .

1 8. I state that ironically the respondent No. 3

through respondent No. 4 illegally and arbitrarily

issued the Notification dated 1 9. 09. 201 3 in

colorable exercise of its power to the extent of

striking down admission of Petitioner Nos. 3, 4

and 6. The same is preposterous for more than

one reason. Firstly, the respondent No. 3

conveniently overlooked and ignored the factum of

institutional recognition granted to the Respondent

No. 9 for the relevant period which was

reconfirmed by the regulatory body (DEC) time

and again. Secondly, it was unjust and

unreasonable to equate the respondent No. 1 0

with ‘private coaching institute’ for that matter

and arbitrarily concluded that the recognition

accorded by erstwhile DEC had no legal sanction

of the respondent No. 1 2. Therefore the said

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notification dated 1 9. 09. 201 3 does not withstand

the legal scrutiny and is liable to be quashed by

this Hon’ble Court.

1 9. It is respectfully submitted that on the

relevant dates of taking admission by the

petitioner Nos. 3, 4 and 6 into BSc (IT) Program

of the respondent No. 9 the respondent No. 9

stood recognized and had the legal sanction of the

concerned statutory body to offer the said

program at KU Study Center operated from NIIT

premise at Panbazar and Ganeshguri at Gauhati.

The rigors of Notice dated 27. 06. 201 3 of the

Respondent No. 1 2 does not disrobe the

respondent No. 9 of the institutional recognition

granted to it by DEC in past when the petitioner

Nos. 3, 4 and 6 were offered admission in BSc

(IT) Program of respondent No. 9.

20. I further submit that the respondent No. 3

had illegally and arbitrarily construed the Notice

dated 27. 06. 201 3 of the respondent No 1 2 to be

made applicable retrospectively to the prejudice of

petitioner Nos. 3, 4 and 6 who have spent their

valuable years diligently pursuing the BSc (IT(

Program which is evident from the fact that they

had successfully (a) obtained their BSc (IT)

Program degree and (b) cleared the entrance test

27

conducted by the respondent No. 3 for giving

admission in their MCA Program. The respondent

No. 3 conveniently and intentionally overlooked and

ignored the fact that what was relevant was the

date of taking admission by these petitioners in to

the BSc (IT) Program of the respondent No. 9,

not the date of passing out of the said program.

As stated above, since these petitioners had

taken admission in the year 201 0 when the

institutional recognition to the respondent No. 9

was very much subsisting, the coercive action of

the cancelling their admission by the respondent

No. 3 is liable to be undone by this Hon’ble

Court”.

10. Reply affidavit of petitioners against the

counter affidavit of respondent No. 1 :-

In the reply affidavit filed by the petitioners, while

reiterating and reconfirming the pleas taken in the writ

petition, the petitioners have contended that the public notice

dated 27.06.2013 does not create any embargo with regard to

admission of the petitioners in MCA course in any University.

Referring to the Clause-C of the said public notice, the

petitioners have contended that the Central/State Government

Universities can conduct courses through Distance Mode in

accordance with the provisions of their respective Act and

after the approval of UGC. The petitioners have further

28

contended that the Office Memorandum dated 01.02.2012

referred to above as issued by the State Government also does

not create any embargo with regard to the admission of the

petitioners in any University including Cotton College State

University. Inasmuch as, both Kuvempu University and Sikkim

Manipal University are UGC recognized universities, which can

conduct courses through Distance Education Mode as reflected

in Kuvempu University Act, 1 987, and the Sikkim Manipal

University of Health, Medical and Technological Science

Act, 1 995. In paragraph-9 of the affidavit, the petitioners

have contended that UGC is the competent authority to clarify

the position as to whether the Degree awarded by Kuvempu

University and Sikkim Manipal University is valid or not.

11. I have heard Mr. M.K. Choudhury, learned senior

counsel assisted by Mr. M.U. Mandal, learned counsel for the

petitioners. I have also heard Mr. D. Saikia, learned Additional

Advocate General, Assam, appearing for the State Government,

who in addition to his oral submissions has also submitted a

written argument. I have also heard Mr. P.K. Goswami, learned

senior counsel assisted by Mr. B.Jha, learned counsel appearing

for the NIIT(respondent No.10). Mr. T.P. Rajendra Kumar,

learned counsel appearing for the Kuvempu University,

respondent No.11, advanced his argument while Mr. A. Chamuah,

learned counsel has made submission on behalf of the UGC,

respondent No.12. None having appeared for the Sikkim Manipal

University (respondent No.6), there was no occasion for

29

advancing any argument on behalf of the said University. I have

also gone through the materials on record.

12. While Mr. M.K. Choudhury along with Mr. Mandal,

learned counsels appearing for the petitioners argued that the

B.Sc(IT) degrees obtained by the petitioners are legally valid

and consequently their admissions into the MCA course could

not have been cancelled by the Cotton College State University

Authority and that too giving retrospective effect to the public

notice dated 27.06.2013, Mr. D. Saikia, learned AAG, Assam in

his long an elaborate argument submitted that in the name of

distance education, the Kuvempu University and Sikkim Manipal

University are in fact have established a Study Centre through

franchising arrangement with private coaching institutions and

thus the Degrees obtained by the petitioners through the so

called study centers of NIIT and the particular center of

Sikkim Manipal University cannot be recognized. He has also

placed reliance on certain decisions, which are as follows:-

(i) (2005) 5 SCC 420 (Prof. Yashpal and another –

vs- State of Chattisgarh and others);

(ii) (201 3) 1 SCC 223 (National Council for Teacher

Education and another –vs- Venus Public Education

Society and others);

(iii) (2009) 4 SCC 590 (Annamalai University –vs-

Secretary to Government, Information and Tourism

Department and Others);

30

(iv) (1 995) 1 SCC 745 (Chandigarh Administration

and another –vs- Jagjit Singh and another);

(v) (201 0) 2 SCC 422 (Union of India and another –

vs- Kartick Chandra Mondal and Another);

(vi) (2007) 6 SCC 35 (Kurmanchal Institute of

Degree and Diploma and others –vs- Chancellor,

MJP Rohil Khand University and others) and

(vii) 201 3 (4) GLT 528 (Mukta Ram Deka and ors –

vs- State of Assam and Ors).

13. Mr. A. Chamuah, learned counsel representing the UGC

supporting the aforesaid argument of Mr. Saikia, learned AAG,

Assam made his submissions in reference to the stand of the

UGC in its affidavit. He also vehemently submitted that the

particular course undertaken by the petitioners through the

franchising arrangement cannot be said to be the course

undertaken under Distance Mode Education recognized by the

UGC.

14. Mr. P.K. Goswami, learned senior counsel appearing on

behalf of the NIIT (respondent No.10) submitted that from

the materials on record, there is absolutely no manner of doubt

that the UGC recognized the Degree of BSc(IT) conferred by

the respondent universities and its course at least up to 2012

and the petitioners having obtained the same undergoing the

courses during the period prior to 2012 and having obtained the

Degree in 2012, the subsequent clarification issued by the UGC

31

is not applicable to them and accordingly the said University of

Assam could not have issued the impugned notification. As

regards the role of NIIT in the matter of undertaking the

course by the petitioners under Kuvempu University, he

submitted that the role of NIIT is that of a Study Centre of

Kuvempu University. He submitted that NIIT having all the

required infrastructures has an agreement with the Kuvempu

University and it is the Kuvempu University, which undertook all

the required formalities towards imparting the course and

conferring the Degree to the petitioners. Emphasizing on the

role of NIIT as facilitator with the arrangement for the same

of the Kuvempu University, he submitted that the course

undertaken by the petitioners under Kuvempu University

through NIIT is recognized one and so also the Degree

conferred by the Kuvempu University pursuant to successful

undertaking of the said course by the petitioners.

15. Learned counsel representing the Kuvempu University

while adopting the aforesaid argument of Mr. Goswami,

submitted that since the Kuvempu University has its

recognition of the UGC for imparting Distance Mode of

Education as per the provisions of its own statute, the

impugned action on the part of the Cotton College State

University is opposed to the said position. He further

submitted that the said University passed the impugned

notification misinterpreting the UGC’s public notice. He also

placed reliance on the decision of the Madras High Court

32

reported in AIR 201 2 Madras 1 70 ( Government of India –

vs- SRM University).

16. It will be appropriate to refer at this stage to the

decisions, on which the learned Additional Advocate General,

Assam and the learned counsel appearing for the respondents.

In Chandigarh Administration and another (Supra), the Apex

Court held that the mere fact that the authority had passed a

particular order in the case of another person similarly

situated, the same can never be the ground for issuing a writ in

favour of another person on the plea of discrimination. This

decision has been referred to, to counter the argument that

similarly situated candidates have been allowed to prosecute

their MCA course in other universities including the Cotton

College State University, of which the petitioners were

students before the impugned order.

17. In Prof. Yashpal and another (Supra), on which the

learned Additional Advocate General, Assam has heavily placed

reliance, the Apex Court came down heavily on mushroom

growth of private universities. In the said case, the particular

provision of the particular Adhiniyam were declared to be ultra

virus and was struck down. In the said case, the Apex Court

emphasized on maintenance of high standards and achievements

of uniformity in standards in higher education and research.

Paragraph 33, 37, 39, 49 and 60, to which the learned

Additional Advocate General, Assam has specifically referred

to, are reproduced below:-

33

“33. The consistent and settled view of this

Court, therefore, is that in spite of incorporation

of universities as a legislative head being in the

State List, the whole gamut of the university

which will include teaching, quality, quality of

education being imparted, curriculum, standard of

examination and evaluation and also research

activity being carried on will not come within the

purview of the State Legislature on account of a

specific entry on coordination and determination of

standards in institutions for higher education or

research and scientific and technical education

being in the Union List for which Parliament alone

is competent. It is the responsibility of higher

education or research throughout the country and

also uniformity in standards is maintained.

37. It is important to note that in view of Section

22 of the UGC Act, the right of conferring or

granting degree can be exercised only by a

university under Section 3 of the aforesaid Act or

institution especially empowered by an Act of

Parliament to confer or grant degrees. What is a

“degree” and what it connotes is not given in the

UGC Act but the meaning of the word as given in

dictionaries and standard books is as under:

Websters Third New International Dictionary:

34

1 . “a title conferred upon students by a college,

university, or professional school upon completion

of a unified programme of study carrying a

specified minimum of credits, passing examinations

and often completion of a thesis or other

independent research project”.

2. “a grade or class of membership attained in a

ritualistic order or society denoting a stage of

proficiency often after a set ordeal or

examination”.

Whartons Law Lexicon:

“the state of a person, as to be a barrister- at-

law, or to be a Bachelor or Master of Arts of a

University”.

Chambers Twentieth Century Dictionary:

“a mark of distinction conferred upon by

universities whether earned by examination or

granted as a mark of honour”.

P. Ramanatha Aiyar’s Law Lexion (2nd Edn):

“a mark of distinction conferred upon a student

for proficiency in some art of science university

diploma of specified proficiency”.

Encyclopedia Americana

“Degree”- the title conferred by a college or

university signifying that a certain step or grade

has been attained in an area of learning. The

award of a diploma conferring the bachelors

35

degree marks completion of undergraduate study.

The masters and doctors degree reward graduate

study. Other degrees constitute evidence of

preparation for professional work- the MD (doctor

of medicine) for example.

In the 20th century, however, the MA is granted

in American universities and in those of England

and the Commonwealth of Nations (apart from

Oxford and Cambridge) on the basis of study

beyond the BA and the presentation (usually) of a

thesis. An exception is Scotland, where the MA

has been the first degree conferred in all six

universities ever since their founding. The

bachelor of philosophy and bachelor of letters

degrees are given for work beyond the MA.

The New Encyclopaedic Britannica

“Degree”- in education any of several titles

conferred by colleges and universities to indicate

the extent of academic achievement. The

hierarchy of degrees dating from the 1 3th

century, once resembled the medieval guild

system. In the United States and Great Britain

the modern gradation of academic degrees is

usually bachelor (or baccalaureate), master, and

doctor. With some exceptions intermediate

degrees such as those of bachelor and master

36

have been abandoned in the universities of

continental Europe”.

39. Mere conferment of degree is not enough.

What is necessary is that the degree should be

recognized. It is for this purpose that the right

to confer degree has been given under Section 22

of the Act only to a University established or

incorporated by or under a Central Act, Provincial

Act or State Act or an institution deemed to be a

university under Section 3 or an institution

specially empowered by an Act of Parliament to

confer or grant degrees. Sub- Section (3) of this

section provides that “degree” means any such

degree as may, with the previous approval of the

Central Government, be specified in this behalf by

the Commission by notification in the Official

Gazette. The value and importance of such

degrees which are recognized by the Government

was pointed out by a Constitution Bench in S.

Azeez Basha v. Union of India.

49. The whole scheme of the impugned Act,

especially the effect of Sections 4, 5, 6 thereof

and the result which it has led to in notifying as

many as 1 1 2 universities within a short span of

one year on the basis of proposals made on paper

with many or most of them having almost zero

37

infrastructural facilities clearly shows that the

relevant provisions of the Act have completely

stultified the power of Parliament under Entry 66

to make provision for coordination and

determination of standards in institutions for

higher education like universities, the provisions of

the UGC Act and also the functioning of the

University Grants Commission. Sections 5 and 6 of

the impugned Act are, therefore, wholly ultra

vires the Constitution and are liable to be struck

down.

18. In Annamalai University (Supra), the Apex Court was

concerned with the provisions of the IGNOU Act, 1985 and the

UGC Act, 1956 and their interrelation. It was held that the

regulations framed by UGC to determine standard of education,

became part of the UGC Act and that the same are applicable

to both open universities as well as conventional formal

universities. It was further held that the Distance Education

Council of IGNOU although an authority under Statue 28 of

IGNOU Act, could not validate the same by granting its

approval, much less with retrospective effect. In paragraphs

40, 41, 42, 55 and 60, it has been observed thus:-

“40. The UGC Act was enacted by Parliament in

exercise of its power under Entry 66 of List I of

the Seventh Schedule to the Constitution of India

whereas the Open University Act was enacted by

38

Parliament in exercise of its power under Entry 25

of List III thereof. The question of repugnancy

of the provisions of the said two Acts, therefore,

does not arise. It is true that the Statement of

Objects and Reasons of the Open University Acts

shows that the formal system of education had

not been able to provide an effective means to

equalize educational opportunities. The system is

rigid inter alia in respect of attendance in

classrooms. Combinations of subjects are also

inflexible.

41 . Was the alternative system envisaged under

the Open University Act in substitution of the

formal system, is the question. In our opinion, in

the matter of ensuring the standard of education,

it is not. The distinction between a formal system

and an informal system is in the mode and manner

in which education is imparted. The UGC Act was

enacted for effectuating coordination and

determination of standards in universities. The

purport and object for which it was enacted must

be given full effect.

42. The provisions of the Act are binding on all

universities whether conventional or open. Its

powers are very broad. The Regulations framed by

it in terms of clauses (e), (f), and (h) of sub-

39

section (1 ) of Section 26 are of wide amplitude.

They apply equally to open universities as also to

formal conventional universities. In the matter of

higher education, it is necessary to maintain

minimum standards of instructions. Such minimum

standards of instructions are required to be

defined by UGC. The standards and the

coordination of work or facilities in universities

must be maintained and for that purpose required

to be regulated. The powers of UGC under

Sections 26(1 )(f) and 26(1 )(g) are very broad in

nature. Subordinate legislation as is well known

when validly made becomes part of the Act. We

have noticed hereinbefore that the functions of

UGC are all- pervasive in respect of the matters

specified in clause (d) of sub- section (1 ) of

Section 1 2- A and clauses (a) and )c) of sub-

section (2) thereof. ”

19. In Union of India and another –vs Kartick Chandra

Mondal and another (Supra), the Apex Court held that one

illegality cannot give rise to another illegality and for that

matter an illegality cannot be perpetuate projecting

discrimination.

20. In Kurmanchal Institute of Degree & Diploma and

others (Supra), submitted to be an identical case with the

present one, the Apex Court dealing with Distance Education

40

Programme and Operation of Study Centers, held that the same

can be conducted by the University only within its territorial

area. In the said case, the particular Study Centre of the

appellant was situated in Nainital, beyond the territorial

jurisdiction of the respondent university. It was held that such

Study Centers cannot be permitted to operate beyond the

territorial jurisdiction of the university.

21. In Mukta Ram Deka and ors (Supra) this Court has

held that B.Ed Degree obtained from the unrecognized

institution is not legally valid. The said Degree was pressed into

service for continuation in the higher post.

22. The case Government of India –vs- SRM University

(Supra) has been relied upon to submit that the decision on

which the learned Additional Advocate General, Assam has

placed reliance is clearly distinguishable in the given facts and

circumstances of the case in hand.

23. The case National Council for Teacher Education and

another (Supra), has been pressed into service to emphasis

that there cannot be any deviation in the matter of imparting a

course violating the norms and regulations.

24. Coming to the case in hand, the issue to be dealt with

is, whether the Bsc(IT) Degree obtained by the petitioners

from the Kuvempu University and Sikkim Manipal University are

recognized or not. None having appeared on behalf of the

Sikkim Manipal University in this proceeding, hence, their stand

in the matter is not discernible. However, it is the stand of the

41

Kuvempu University that the BSc(IT) Degree conferred by it

through NIIT, is legally valid at least up to 2012 being

recognized and approved by the UGC. It is their categorical

stand that ever since the UGC has permitted and approved 31

programmes, vide letter dated 27.08.2012, which did not

include the BSc(IT) Programme and clarified that the

recognition of the said course through Distance Education

Mode would be valid till then, the petitioners having obtained

the Degree in 2012, the same is valid in the eye of law.

25. Section 55 of the Karnataka State University Act,

2000, providing for jurisdiction, admission to privileges etc lays

down that the Act shall be exercised in the University Area

and no Educational Institution beyond the said area shall be

associated with or admitted to any privileges of the university.

However, the said provision is subject to the proviso that the

benefit of Correspondence Course or External Degree Courses

may be extended by the University to the students outside the

University area.

26. By the above referred letter dated 27.08.2012, the

IGNOU authority providing the recognition to the Directorate

of Distance Education, Kuvempu University for offering

programmes through Distance Mode recognized for three

academic years from 2012-2013 to 2014-2015, 31 programmes

which did not include the BSc(IT), it was stipulated that the

institution shall offer only the said programmes through

Distance Mode, which are approved by the DEC. It was further

42

stipulated that the territorial jurisdiction for offering

programmes through Distance Mode would be as per the

decision of the Council taken in its 48 DEC meeting. As per the

said decision, territorial jurisdiction of State Universities

(both Government funded and private) will be as per their Acts

and statutes, but not beyond the boundaries of their

respective States.

27. The aforesaid communication was followed by the

communication dated 16.09.2013 addressed to the Kuvempu

University Authority by the Distance Education Bureau, UGC on

the subject of issue of recognition of BSc(IT); BSc(ITIM) and

MSc(IT) programmes offered by Kuvempu University through

Distance Mode in collaboration with NIIT. By the said

communication, it was conveyed that the erstwhile DEC has

accorded provisional institutional recognition to the University

in 2007-08 with respect to the programmes approved by the

statutory bodies of the university through Distance Mode. It

was further conveyed that the institutional recognition was

valid till such time programme wise recognition was to be

granted by the DEC after conducting inspection under the DEC

guidelines. By the said communication, it was clarified that the

recognition of the aforesaid three programmes offered by

Kuvempu University under Distance Education Mode during the

period of institutional recognition would be valid.

43

28. For a ready reference, the aforesaid communication

dated 16.09.2013 (Annexure-3 to the counter affidavit of

respondent No.11) is reproduced below:-

“To

The Director

Directorate of Distance Education

Kuvempu University

Shankaraghatta- 577451

Distt- Shimoga (Karnataka)

Subject: Issue of recognition of BSc (IT), BSc

(ITIM) and MSc(IT) programmes offered

by Kuvempu University Shimoga to distance

mode in collaboration with NIIT- regarding.

Sir,

The undersigned is directed to refer to your

letter date 1 1 . 09. 201 3 on the above subject

requesting for certain information from the UGC

with regard to certain courses run by the

University and state as under: -

2. Attention is invited to Notification F. No. 1 -

4/201 3 (CPP- II), dated 1 7th June 201 3 of

University grants Commission with regard to

transfer of regulatory functions of the Open and

Distance Learning (ODL) system from Indira

44

Gandhi National Open University (IGNOU) to UGC

(copy enclosed).

3. The erstwhile Distance Education Council (DEC)

had accorded provisional institutional recognition to

the University in 2007- 08 with respect to the

programmes approved by the statutory bodies of

the University through distance mode. This

institutional recognition was valid till such time

programme- wise recognition was to be granted by

the DEC after conducting inspection under the

DEC guidelines.

4. After conducting the inspection on 28th and

29th August, 201 1 , the recommendations of the

Expert Committee (which conducted the inspection)

were placed before the Tripartite Committee of

UGC- AICTE- DEC and subsequently before the

Distance Education Council which approved 31

programmes. The decision was communicated to

the University vide letter No.

DEC/KU/SHMG/KTK/09/II/1 41 98- 1 4200 dated

27. 08. 201 2. The list of programmes included

therein did not include the programmes referred

to your aforementioned letter i. e. BSc (IT), BSc

(ITIM) and MSc(IT).

5. In the light of the above, it is clarified that

the recognition of the 3 programmes mentioned

45

above offered by Kuvempu University in distance

education mode during the period of institutional

recognition leading to award of degrees would be

valid provided the programmes were approved by

the Statutory Bodies of the University and

offered within the territorial limits stipulated by

DEC, till the period the University received

programme- wise recognition by the erstwhile DEC.

Further, DEC has always maintained that

franchising of study centers is prohibited and this

has also been communicated to the University

from time to time.

Yours faithfully, (Vandana Varma)

Asst. Director Distance Education Bureau, UGC”.

(Emphasis added)

29. Prior to that, the IGNOU vide its letter dated

29.03.2010 (page 131 of the counter affidavit of respondent

No.10) informed the Kuvempu University Authority thus:-

“Prof. Manjulika Srivastava Director Notification Sub: Territorial Jurisdiction in offering

programmes through distance mode- reg.

The Council in its 28th meeting held on 23rd

March, 2007, had decided that jurisdiction for

46

offering programmes through distance mode will

be as per the Acts and Statues of the concerned

university. However, in the ninth Joint

Committee meeting of UGC- AICTE & DEC held on

1 7. 08. 2009, regarding territorial jurisdiction for

offering programmes through distance mode, it

was decided that the latest UGC notifications

will prevail over all previous notifications and

circulars of the DEC.

On the requests received from various

institutions offering programmes through distance

mode requesting DEC to reconsider its decision on

territorial jurisdiction the matter was referred to

the Council for its consideration. In its 35th

meeting the Council noted that distance education

and online education cannot have the Territorial

Jurisdiction. Further, it was decided that in case

of Central Universities and the State Universities,

the Territorial Jurisdiction will be as per their

Acts and Statues for offering programmes through

distance mode. The Territorial Jurisdiction in case

of deemed universities will be as per UGC, which

mandates the prior approval of the UGC for

opening Centers/ off campus centers outside the

Headquarters. The Territorial Jurisdiction in case

of Private Institutions (other than Universities)

will be as decided by the Joint Committee.

47

This is issued with the approval of the

Chairman, DEC.

Yours sincerely, (Manjulika Srivastava)

To

The Registrar Kuvempu University Jnana Sahyadri, Shankaraghatta, Shimoga- 577451 , Karnataka Copy to:

The Director, Directorate of Correspondence

Courses, Kuvempu University Jnana Sahyadri,

Shankaraghatta, Shimoga- 577451 , Karnataka.

30. Under Section 3 of the Karnatake State University

Act, 2000, it has been provided that the Universities

established under the Act, shall be deemed to have been

established with their territorial jurisdiction as provided

therein, which extends over the districts mentioned therein. It

is on the basis of this provision, it was argued by the State

Government and UGC that the Kuvempu University’s

Jurisdiction is operational within the aforesaid five districts

and not beyond the State of Karnataka. However, Section 5 of

the same Act dealing with the jurisdiction, admission to

privileges etc provides that the benefit of Correspondence

48

Course or External Degree Course may be extended by the

University to students outside the university area.

31. University Grants Commission (Establishment and

Maintenance of Standards in private universities)

Regulations, 2003 is primarily concerned with setting up of

private universities through State Acts. Under Clause-3 of the

said Regulation, each Private University shall be established by

a separate State Act and shall confirm to the relevant

provisions of the UGC Act, 1956. A private university

established under a State Act shall operate ordinarily within

the boundary of the State concerned. However, after the

development of main campus, in exceptional circumstances, the

university may be permitted to open off campus centres. The

overall performance of the off campus centres and or the

Study Centres shall be monitored annually by the UGC and if

the functioning of the said centres remains unsatisfactory, the

private university shall be instructed by the UGC to close own

the said centres.

32. Under the said Regulation, off campus centre means a

centre of the private university established by it outside the

main campus (within or outside the State) operated and

maintained as its constituent unit having the universities

compliment of facilities, faculty and staffs. A Study Centre

means a centre established and maintained or recognized by

the university for the purpose of advising, counseling or for

rendering any other assistance required by the students used in

49

the context of Distance Education. Although, as per the UGC

Regulation of 2003, the off campus centres or study centres

shall be set up with the prior approval of the UGC and the

State Government, but the same is in respect of establishment

and recognition of private universities and no in case of State

Universities like that of Kuvempu University.

33. Let us now refer to some of the provisions of the

IGNOU Act, 1985. The said Act was enacted to establish and

incorporate an Open University at the national level for the

introduction and promotion of Open University and distance

education system in the educational pattern of the country and

for the coordination and determination of circumstances in

such system. Defining “Distance Education System” u/s 2 (E)

of the Act, provides that the same means the system of

imparting education through any means of communication such

as broadcasting, telecasting, correspondence courses, seminars,

contact programmes or the combination of any two or more of

such means. The objects of the University shall be to advance

and disseminate learning and knowledge by a diversity of means,

including the use of any communication technology. Section 5(2)

of the Act emphasis on the duty of the University to take all

such steps as it may deem fit for the promotion of the open

University and distance education systems. Authorities are as

incorporated in section 16 of the Act. Section 28 makes

provisions for DEC, which shall consists of the members as

indicated u/s 28(3), which includes a member of the UGC and

50

Secretary, UGC. Section 28(4), lays down the powers and

functions of DEC.

34. During the course of hearing of the writ petition, Mr.

Goswami, learned counsel representing the NIIT produced

documents pertaining to Distance Education Bureau, a Bureau of

UGC furnishing information relating to recognition accorded to

Universities/Institutions for offering programmes through

Distance Mode. In the list, the name of the Kuvempu

University appears at Serial No.71. In the said serial number,

while indicating the provisional recognition and continuation of

provisional recognition, the duration of recognition is indicated

as from 2007-2008 to 2007-2008 and 2008-2009 to 2011-

2012, respectively. As regards the Status of recognition, the

remark is “The Erstwhile DEC had given institutional

recognition to offer programmes through distance mode,

which are approved by its statutory bodies.” As regards the

duration of recognition from 2012-2013 to 2014-2015, in the

heading of status of recognition, there are programmes of

different subjects, which did not include BSc(IT).

35. It is in the above context, both Kuvempu University

and NIIT have emphasized that BSc(IT) was very much

recognized up to 2012. Under Section 26(3) of the UGC Act,

1956, the UGC is empowered to make regulations including the

power to give retrospective effect to the regulations or any of

them, but no retrospective effect shall be given to any

regulations so as to prejudicially affect the interest of any

51

person, to whom such regulation may be applicable. The Madras

High Court’s decision has been referred to in the context of

this provision. During the course of hearing of the writ petition,

Mr. Goswami, learned counsel representing the NIIT, produced

the UGC notification dated 17.06.2013, by which the UGC in

exercise of its powers conferred u/s 12 of the UGC Act, 1956

has adopted the guidelines of DEC on minimum requirements for

recognition of ODL institutions of the earlier DEC in the extent

statue 28 of IGNOU Act, 1985.

36. In the reply affidavit filed by the petitioners against

the affidavit in opposition of the respondent No.1, they have

enclosed the list of UGC recognized universities, in which the

Kuvempu University and Sikkim Manipal University are included

at Sl No.72 and 152. Along with the said affidavit, the

petitioners have also enclosed the Annexure-3 Documents

pertaining to recognition/approval of the Sikkim Manipal

University by the UGC. Along with the said affidavit, the

petitioners have also enclosed the Gazette notification dated

17.04.2006 of the Sikkim Government notifying the Sikkim

Manipal University of Health, Medical and Technological

Sciences (Amendment) Act, 2006. As per amended section 5

of the said Act, the university is authorized to offer its

academic programmes through Distance Education Mode and to

establish and collaborate with resource centres in various parts

of the Country and abroad. It also provides for establishing and

maintaining study centres/learning centres in various parts of

the Country and abroad for the purpose of offering academic

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programmes through Distance Education Mode. Another

document annexed to the said reply affidavit is the letter

dated 24.05.2010 of the IGNOU addressed to the Directorate

of Distance Education, Sikkim Manipal University conveying the

resolution of the Distance Education Council dated 10.03.2010

to the effect that the Distance Education and Online Education

cannot have the territorial jurisdiction. By the said

communication, the Council ratified the decision taken by the

Chairman in accepting the compliance report and accorded

recognition for a period of three years w.e.f. 2009-2010 to

2011-2012.

37. Coming to the Annexure-1 OM Dated 01.02.2012

annexed to the counter affidavit of the respondent No.1, the

same is on the subject of guidelines to be followed for

obtaining of UGC qualifications in regard to M.Phil/P.Hd

qualifications only and pertains to promotion to the next higher

grade of Senior Grade/Selection Grade/Associate Professor

and Principal etc. The said OM is not specific in respect of the

issue in hand.

38. As regards the decision in Kurmanchal Institute of

Degree and Diploma and others (Supra), referred to by Mr.

D. Saikia, learned Additional Advocate General, Assam with the

argument that both the universities i.e. Kuvempu University and

Sikkim Manipal University cannot operate beyond their

territorial jurisdiction. The same will have to be considered in

reference to the statutes of the two universities in respect of

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Distance Mode of Education. As referred to in the counter

affidavit filed by the respondent No.11, as per the provisions of

Section 5 of the Karnataka State Universities Act, 2000, the

benefit of the Distance Mode of Education is permissible and in

fact, the university has been offering the same by obtaining

the institutional recognition in 2007-2008, the BSc(IT),

M.Sc(IT) and B.Sc(ITIM) courses were approved by the

statutory bodies of the Kuvempu University and appropriate

statutes were also framed empowering the university to impart

the said course.

39. In the instant case, the petitioners were admitted to

BSc(IT) course in 2008-09 and on conclusion of the course in

2012, they appeared in the University examination and cleared

the same in 2012. The UGC itself by its aforesaid letter dated

16.09.2013 issued the clarification that the recognition of the

three programmes mentioned in the letter including that all

BSc(IT) offered by Kuvempu University in Distance Education

Mode during the period of institutional recognition leading to

award of Degrees would be valid provided that the programmes

were approved by the statutory bodies of the university and

offered within the territorial limits stipulated by DEC, till the

period the university received programme wise recognition by

the erstwhile DEC. Further by the above mentioned

communication dated 29.03.2010, IGNOU clarified the matter

to Kuvempu University regarding territorial jurisdiction in

offering programmes through Distance Mode that as per the

decision of the council, the Distance Education and online

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Education cannot have the territorial jurisdiction and that in

case of Central Universities and State Universities, the

territorial jurisdiction will be as per their case and status for

offering programmes Through Distance Mode.

40. As noted above, as per the status of the Universities in

question, they are entitled to impart Distance Mode of

Education with no bound of any territorial jurisdiction. This

being the position and with the programme wise recognition of

Distance Mode of Education starting from 2012, where BSc(IT)

is not included, the respondent University is not entitled to

impart BSc(IT) programmes/course through Distance Mode of

Education, but certainly the Degrees obtained by the

petitioners prosecuting their studies from 2008-2009 to 2011-

2012 will have the recognition as a valid Degree. Consequently,

the public notice issued by the UGC cannot be held applicable to

the case of the petitioners.

41. This being the position, the impugned notification

which has also been issued without providing any opportunity of

being heard to the petitioners is also not sustainable in law.

However, I hasten to add that this position towards recognizing

the BSc(IT) Degree obtained by the petitioners is only up to

the stage of 2012 and not thereafter as the said course is not

included in the programme wise recognition offered by the

UGC.

42. Accordingly, the writ petition is allowed to the extent

indicated above by setting aside and quashing the impugned

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notification dated 19.09.2013. Interim order operating in this

proceeding stands modified in terms of this final judgment and

order. Consequently, the petitioners will be entitled to get

their results declared. Be it stated here that although by the

impugned notification the petitioners’ admission to MCA Course

was cancelled, but they were allowed to appear in the

University examination by interim orders with the direction

that results thereof should not be declared till final decision in

the matter.

43. The writ petition is answered in the above manner. The

parties shall bear their own costs.

JUDGE

Alam