Dismissed

Abul Kalam Talukdar v. the State of Assam and 5 Ors.

Gauhati HC18 Jun 2019WP(C)/2593/2016

Case brief

AI extract

What is this about?

The Gauhati High Court rejected a writ petition challenging the rejection of the petitioner's application for the post of in-charge Principal. The court held that the Director of Secondary Education was justified in disqualifying the petitioner's distance education Master's degree from a Deemed University as it lacked UGC approval for off-campus functioning.

What did the court decide?

The writ petition stands rejected as it is devoid of merit, upholding the Director of Secondary Education's decision to exclude the petitioner based on his unapproved distance education degree.

Abul Kalam Talukdar Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010170442016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2593/2016

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1:ABUL KALAM TALUKDAR

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S/O- ROSTOM ALI TALUKDAR, VILL.- KHARUBHAZ, P.O.- RAJMITA, P.S.LAKHIPUR, DIST.- GOALPARA, ASSAM, PIN- 783129.

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VERSUS

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1:THE STATE OF ASSAM AND 5 ORS

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REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, SECONDARY EDUCATION DEPTT., DISPUR, GHY- 6, ASSAM.

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2:DIRECTOR OF SECONDARY EDUCATION KAHILIPARA GUWAHATI.

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3:INSPECTOR OF SCHOOLS GOALPARA DIST. CIRCLE GOALPARA.

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4:UNIVERSITY GRANTS COMMISSION UGC BAHADUR SHAH ZAFAR MARG.

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5:U G C BRANCH OFFICE NEW DELHI- 110002 INDIA.

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6:NURUL ISLAM MIAH I/C. PRINCIPAL JALESWAR H.S. SCHOOL GOALPARA ASSAM

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Advocate for the Petitioner : MS.A BARMAN

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Advocate for the Respondent : SC, U G C

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BEFORE HON' BLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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Date : 18-06-2019

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Heard Mr. R Goswami, learned counsel for the petitioner. Also heard Mr. C Bhattacharjee, learned Standing counsel, Secondary Education Department for the respondent Nos. 1 to 3 and Mr. A Chamuah, learned Standing counsel, UGC for the respondent Nos. 4 and 5.

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(2) Though, notice on the respondent No. 5 was duly served as per the office note dated 30.08.2016, but till date, the said respondents have not appeared in the matter.

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(3) Issue involved in this writ petition is with regard to allowing the respondent No. 5 to be the Principal in-charge of Jaleswar Higher Secondary School, Goalpara, a provincialised Higher Secondary School of the State vide order under No. GB-EST/Apptt/FP/19/2014/91 dated 11.02.2016 of the Director of Secondary Education, Assam.

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(4) It is submitted by the petitioner that since 26.03.1992, he has been serving as an Assistant Teacher in said Jaleswar Higher Secondary School, Goalpara and that he has completed his B.Ed. course from Govt. B.T. College, Goalpara under Gauhati University on 29.11.2001 and also obtained Master degree in the subject of Environmental Science from Vinayaka Missions University, Salem, Tamil Nadu through Distance Education Mode in the year 2012, which is an University under Section 3 of UGC Act, 1956 and approved by the UGC, Distance Education Council, IGNOU, New Delhi.

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(5) It is also submitted by the petitioner that the Director of Secondary Education, Assam issued a circular for appointment of in-charge Principals of Higher Secondary Schools and in the said circular, the requisite qualification for the post of Principal of provincialized Higher Secondary School was prescribed as M.A./M.Com./M.Sc. with B.T./B.Ed. degree having 15/17 years of experience for Subject Teachers and Graduate Teachers respectively. Therefore, the petitioner, having the requisite qualification and 24 years of experience as an Assistant Teacher, is entitled to be the in-charge Principal and the outgoing Principal of the said Jaleswar Higher Secondary School prepared a seniority list of 22 nos. of teaching staff of the said H.S. School, wherein the name of the petitioner was figured at serial No. 6, whereas that of the respondent No. 5 at seniority position No.9 and out of those 22

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nos. of Teachers of the said school, 4 (four) of them were finally selected and among the 4 (four) selected Teachers, the petitioner was figured in the serial No. 2, whereas the respondent No. 5 was in the serial No. 3 and that the respondent No. 5 is junior to him.

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(6) The petitioner further contended that as he is a Master degree holder from Vinayaka Missions University, Salem, Tamil Nadu in the year 2012, the DSE, Assam vide its impugned speaking order dated 11.02.2016 illegally rejected his case to be the in-charge Principal of said Jaleswar Higher Secondary School, Goalpara holding that his Master degree is not approved by the UGC without having any authority to offer distance education. It is stated by the petitioner that the said contention of the DSE, Assam is not tenable since said Vinayaka Missions University, Salem, Tamil Nadu is approved by the UGC, Distance Education Council, IGNOU, New Delhi and further, in the website of the UGC, said Vinayak Missions University has been placed at position No. 174 in the list of Distance Education as approved by the UGC.

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(7) The respondents UGC in its affidavit filed on 24.05.2017 have stated as follows:-

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“8. He has acquired his PG degree through distance education mode in the year 2012 from Vinayaka Mission Research Foundation which is a deemed to be University and it is situated in Salem District of Tamil Nadu. The Vinayaka Mission Research Foundation, Salem, Tamil Nadu is a Deemed University. The erstwhile regulator Distance Education Council (DEC) had granted ex-post facto institutional recognition to it for the programmes offered by it through distance mode up to the academic year 2005. Further, DEC gave “institutional recognition” to it for a period of 5 years w.e.f. the date of issue of its letter i.e. from 28^th February, 2007. The programme-wise recognition was accorded to it for three years from academic session 2011-12 to 2013-14 for offering specific programmes. After that, no further recognition has been granted to it either by DEC or University Grants Commission to offer any programme through distance mode. It is pivotal to mention for the clarity in the issue that a Deemed University can operate within its own Head Quarters and Campuses approved by MHRD only. It is also for information that University Grants Commission has not granted its approval to the said University to open any study center in any other State or even within its State.

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That the Answering Respondent for better clarity begs to state that the Deemed Universities cannot affiliate any college or institution for conducting courses leading to award of its diplomas, degrees or other qualifications. Also these cannot offer their

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programmes through franchising arrangement with institutions for the purpose of conducting courses through distance mode or even for regular mode. The students have been advised not to take admission in the unapproved Study Centers, Off-Campus Centers, Franchisee Institutes, and Colleges/Institutions claiming to be affiliated with Private Universities or Deemed Universities.

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In so far as the Vinayaka Mission Research Foundation, Salem, Tamil Nadu, is concerned, it is a Deemed University. Deemed Universities are established by MHRD on the recommendations of University Grants Commission for offering specific programmes in specific fields within specific territorial jurisdiction only and thus the Deemed Universities are bound to adhere to directives issued by University Grants Commission for time to time and also their territorial jurisdiction.

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Being a Deemed University, Vinayaka Mission Research Foundation, Salem, had to offer programmes from its headquarters/main campus only.

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It is stated that the Public notices on Courses/Study Centers/Off Campuses & Territorial Jurisdictions of Universities issued by the University Grants Commission vide Notices No. F 6-9/2004 (CPP-I) dated 23.08.2005 (Ann-I) specifically stated as

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“The University Grants Commission has been receiving a large number of letters from individual and organization seeking clarifications about the study centers of Deemed to be Universities particularly those associated with the following three Deemed to be Universities:-

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Janardan Rai Nagar (JRN), Rajathan Vidyapeeth, Udaipur (Rajasthan).

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Allahabad Agriculture Institute (AAI) Allahabad (Uttar Pradesh).

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Institute of Advanced Studies in Education of Gandhi Vidya Mandir, (IASE) Sardarshahr, Rajasthan.

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In the context, the public at large and students in particular and informed as under:

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The Deemed to be Universities are empowered to award Degrees specified by the University Grants Commission under Section 22 of its Act.

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The Deemed to be Universities are not permitted to affiliate any college/institute.

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The Deemed to be Universities can start new departments within the University campus or start off-campus centers with prior specific permission of the University Grants Commission and that too the State Government where the center is proposed to be opened.

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The Deemed to be Universities can set up off-shore campus only after sue permission from the Government of India and on the recommendations of the University Grants Commission and also that of the Government of the host country.

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The Deemed to be Universities can offer Distance Education programmes only through its own study centers and that too with the specific approval of both the University Grants Commission and Distance Education Council.

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Private Franchising of higher education is not permissible.

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As of today, University Grants Commission has not approved the study centers of any deemed to be Universities including the above three Deemed to be Universities.

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“The Students parents and public at large are advised to take note of the above points while seeking in Deemed to be Universities.”

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“The University Grants Commission has not granted approval to any deemed to be university to establish study centers.”

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It is stated that prior to this, University Grants Commission issued a circular to ViceChancellors of all deemed Universities vide DO No. F 6-7/2003 (CPP-I) dated 16.03.2004 to comply with the directions issued by University Grants Commission with regard to opening of study centers/academic centers, offer of new programmes and opening of off-campus and clarified that all the degrees awarded by deemed universities in violation of instructions issued by University Grants Commission will be regarded as unspecified (Ann-II). Vide these Guidelines, the following observations and stipulations were made:

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“The Government on the recommendations of the University Grants Commission has conferred the status of deemed to be university on your institution. As it is, all such institutions are expected to bring about qualitative improvement in higher education by way of realizing excellence of the highest order in their chosen fields.

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Over the time, however, it has been observed that same of the deemed to be

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universities are not functioning as per well –defined objectives and limits and are introducing new courses, opening study centre/academic centre/off campuses etc. without taking any approval from the University Grants Commission. At time these centers are opened even in the absence of proper physical and academic infrastructure.

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The University Grants Commission has taken up serious note of it. In keeping with the University Grants Commission’s mandate to maintain the standard of teaching and research in Universities, it has been decided that the Deemed to be Universities will have to obtained the prior approval of the University Grants Commission for starting new courses, for opening academic centers/study center/off campuses etc. All those deemed to be Universities which are already engaged in such kinds of activities shall solicit University Grants Commission’s approval within six months of issue of this letter failing which the courses/centers run by the Universities shall be declared unrecognized by the University Grants Commission. A copy of the University Grants Commission guidelines and procedure to be adopted for establishing new departments within the campus, setting up of campus centre(s)/institution(s) off-shore campus(es) and starting distance education programme, is enclosed along with the prescribed performa. You are requested to follow this guidelines in later and spirit of establishing new centers and for already established centers. The proposal in the prescribed performa shall be sent to the University Grants commission for new as well as continuing courses/centers for consideration/ex-post-facto approval of the Commission.

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It may please be noted that the degrees awarded by the deemed Universities in violation of the instruction contained in the enclosed guidelines shall be regarded as unspecified and render the deemed Universities to be punishable under relevant provisions of the University Grants Commission Act, 1956.

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It is submitted that Clause 2 of the said guidelines dealt with the procedure to be followed in respect of setting up new departments within their campus of the deemed University, which provides as under:-

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“2. All deemed to be Universities intending to set-up new departments within their campus, Off-campus centre(s) or an institution outside the main campus of the deemed University may apply as follows:-

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2.1 The deemed University intending to open a new department in its campus or an

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off-campus center/institution shall approach the University Grants Commission (UGC) at least six months prior to opening such center on a performa prescribed for this purpose (Annexure-I). The deemed University desirous of starting the new off-campus center/institution or introducing a new course/programme in a professional subject, shall comply with all the requirements as required by statutory professional Councils and ensure fulfilling their norms before approaching the University Grants Commission.

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2.2. The new Departments, new off-campus center/institution shall be set up only after obtaining approval of the University Grants Commission where such a center is proposed to be established. The University Grants Commission shall cause spot visit/verification of the proposed new departments, new off-campus center/institutions to verify its infrastructure facilities, programmes, faculty, financial viability etc. before giving permission to start the center. The report of the committee shall be considered by the Commission for its approval.

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2.3 No objection certificate from the parent University may also be submitted.

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2.4 An off-shore campus shall be set up only after due permission from the Government of India on the recommendations of the University Grants commission and also that of the Government of the host country.

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Further, clause 4 of the said guidelines dealt with the issue of Distance Education. It specifically provided that ‘’the Deemed to be University could offer the distance education programmes only with the specific approval of the Distance Education Council (DEC) and the University Grants Commission (UGC). As such, any study center(s) at that point of time, could have been opened only with the specific approval of the Distance Education Council and the University Grants Commission.”

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It is also important to note that the University Grants Commission vide its circular issued to VCs of all deemed Universities vide No. F.6-1(7)/2006 (CPP-I) dated 05.10.2007 warned all Universities that courses/programmes offered by these Universities in violation of University Grants Commission guidelines are not recognized by University Grants Commission (Ann-II).”

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(8) Mr. Chamuah, learned Standing counsel, UGC has placed reliance on the decision of the Hon’ble Apex Court in the case of Prof. Yashpal Vs. The State of Chattisgarh, reported in (2005) 5 SCC 420, wherein, the Hon’ble Apex Court has held the view that Parliament alone is competent to enact

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laws for any part or for the whole country and the State legislature can enact law only in respect of its territorial jurisdiction confined to the concerned State.

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(9) Mr. Chamuah, learned Standing counsel, UGC submits that a letter was circulated to all the State Government to take suitable action to amend the existing Acts so as to bring the same in conformity with the observations of Hon’ble Supreme Court and therefore, even State Government as well as State Private Universities are not allowed to operate in other States.

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(10) From the said affidavit of the respondents UGC, Mr. Chamuah, learned Standing counsel, UGC further submitted that being a Deemed University, like Vinayaka Missions Research Foundation, Salem, Tamil Nadu had to offer programmes from its headquarters/main campus only and it could not operate beyond its territorial jurisdiction. He also submitted that as per UGC, the study centers and franchise in other States have never been approved by University Grants Commission and that the University in question has not taken any approval even for the study centers in its own State of Tamil Nadu.

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(11) The Director of Higher Education, Assam in its affidavit filed on 02.01.2017 stated that though the petitioner joined his service as an Assistant Teacher prior to the respondent No. 5 and also received Graduate Scale of Pay prior to him, but the Master degree obtained by the petitioner from Vinayaka Missions University, cannot be accepted, as the said University did not appear in the list of Universities which are recognized by the UGC offering degree through Distance Mode.

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(12) The said Director in its affidavit also clarified that the petitioner acquired his Master degree in the subject of Environmental Science from the said Vinayaka Missions University, Salem, Tamil Nadu in the year 2012 and appeared in the examination center at Crescent College, Dhubri. After consulting the respective Heads of the Universities and the UGC and on perusing the websites of said University and their notified websites, it is found that the said Vinayaka Missions University, Salem, Tamil Nadu had no authority to confer degrees through Distance Education Mode and the said Director further placed before the Court that the petitioner obtained his Master degree in the subject of Environmental Science from said Vinayaka Missions Research Foundation, Salem, Tamil Nadu, wherein the subject of Environmental Science in the said Vinayaka Missions University was not found to be a recognized one.

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(13) The said finding of the UGC as well as the Director of Secondary Education, Assam remained uncontroverted by the petitioner and further, it is not the case of the petitioner that he obtained his Master degree from said Vinayaka Missions Research Foundation, Salem, Tamil Nadu, Deemed

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University by attending his classes regularly in the campus of the said Deemed University at Salem and it is a fact that he appeared in the examination center at Crescent College, Dhubri for his said alleged Master degree in the subject of Environmental Science from the said Vinayaka Missions Deemed University through Off Campus Mode in its study center and/or its franchise.

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(14) Considering the above, this Court is of the opinion that no such illegality and irregularity has been found in the impugned order dated 11.02.2016 (Annexure-6 to the writ petition), whereby the Director of Secondary Education, Assam did not consider the Master degree obtained by the petitioner in the subject of Environmental Science from Vinayak Missions University, Salem, Tamil Nadu as a valid Master degree for consideration of his case to be appointed as a Principal in-charge of said Jaleswar Higher Secondary School, Goalpara.

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(15) Accordingly, this writ petition, being devoid of merit, stands rejected.

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JUDGE

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Comparing Assistant

Abul Kalam Talukdar v. the State of Assam and 5 Ors.

Case brief

What is this about?

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Abul Kalam Talukdar v. the State of Assam and 5 Ors.

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