Allowed

Sri Debasish Das v. Karnataka State Open University

Karnataka HC15 Dec 2023WP/25006/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition filed by students seeking degree certificates. Directing UGC to hold an enquiry into UGC compliance, territorial jurisdiction, and UGC recognition prior to issuing degrees at the University of Karnataka's request.

What did the court decide?

UGC directed to hold an enquiry into UGC recognition and territorial jurisdiction; KSOU instructed to provide details and release certificates if compliant within three months.

Sri Debasish Das Vs Karnataka State Open University — Education and Admissions | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 25006 OF 2022 (EDN-RES)

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BETWEEN:

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1 . SRI DEBASISH DAS AGED ABOUT 34 YEARS, S/O NIRANJAN DAS BHASTARA VILLAGE AND POST, HOOGHLY DISTRICT WEST BENGAL-712 303

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2 . SRI. MD. AMINUL ISLAM S/O MD. AZIZUL ISLAM AGED ABOUT 36 YEARS, VILLAGE AND POST-RAMPUR, BHAGWANGOLA POST, MURSHIDABAD DISTRICT-742113

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3 . SRI. SANJOY MONDAL S/O SUSHANTA MONDAL AGED ABOUT 41 YEARS, PINDIRA VILLAGE AND POST, PS-MONGAL KOTE

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PURBA BARDHAMAN DISTRICT-713143

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4 . SRI. SUDIN CHATTERJEE

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S/O SUBIR KUMAR CHATTERJEE AGED ABOUT 36 YEARS, JALSUTI VILLAGE, BANWARIBAD RAJ POST,

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MURSHIDABAD DISTRICT-713123 WEST BENGAL.

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5 . SRI. MAHARAJ BARUI S/O NIRMAL KUMAR BARUI, AGED ABOUT 38 YEARS, BENEPARA VILLAGE, SANKHAI POST, PURBA BURDWAN DISTRICT WEST BENGAL-713123

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6 . SRI. ASADUL HOQUE S/O SAHIDUL HOQUE, AGED ABOUT 32 YEARS, PUNASHI (PASCHIMPARA) VILLAGE, BAHARAN POST, PS SALAR MURSHIDABAD DISTRICT WEST BENGAL-713123

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7 . SRI. APTABUDDIN S/O MOZID ALI AGED ABOUT 39 YEARS, SHIBNAGAR, GUDHIA POST, MURSHIDABAD DISTRICT-742302

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8 . MS. SAMPURNA KUNDU D/O LATE AMAR KUMAR KUNDU AGED ABOUT 31 YEARS, HOUSE NO. 89, HAZRAMATH VIVEKANANDA COLLEGE MORE STREET: ALAMGANJ ROAD, (BESIDE HDFC BANK) SRIPALLY POST-713103 PURBA BARDHAMAN DISTRICT WEST BENGAL

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9 . SRI AMIT KUMAR DUTTA S/O RABINDRA NATH DUTTA

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AGED ABOUT 39 YEARS, PATULI STATION BAZAR, PURBASTHALI POST-713512 PURBA BARDHAMAN DISTRICT WEST BENGAL

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10 . SRI. RAMIJ S K S/O AINUDDIN S K AGED ABOUT 34 YEARS, BILKUMARI POST, NAKASHIPARA, NADIA DISTRICT-741137 WEST BENGAL

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11 . SRI. HABIBUR RAHAMAN S/O REJAUL HOQUE AGED ABOUT 36 YEARS, SHIBNAGAR, GUDHIA POST, MURSHIDABAD DISTRICT-742 302

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12 . MS. JUYELI BISWAS D/O GURUDAS BISWAS AGED ABOUT 33 YEARS, SANTHOSHA COLONY VILLAGE, POST MANGALGANJ, P.S BAGDAH, NORTH 24 PARGANAS DISTRICT-743 297 WEST BENGAL

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13 . MS RADHIKA RANJAN DASH D/O JAGAT SEVAK DASH AGED ABOUT 49 YEARS BARGAON (B) POST, NUAPADA DISTRICT-766 107

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14 . SRI. BANCHHANIDHI BEHERA D/O BUDHURAM BEHERA AGED ABOUT 53 YEARS, CHANABEDA, BHOJPUR POST,

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KHARIAR, NUAPADA DISTRICT-766 107

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15 . SRI. CHANDRIKA MOHAPATRA W/O RANJAN KUMAR RATH AGED ABOUT 42 YEARS, MANDARBAGICHAPADA BHAWANIPATNA POST, KALAHANDI DISTRICT-766 001 ODISHA

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16 . SRI. SRIKANTA KUMAR PRADHAN S/O JUBRAJ PRADHAN AGED ABOUT 55 YEARS, BHOIGUDA, TIKRAPADA POST, VIA BHAWANIPATNA KALAHANDI DISTRICT-766 002 ODISHA

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17 . SMT. KAMALIKA BHANDARI D/O DEBABRATA BHANDARI, AGED ABOUT 40 YEARS, KAKDWIP, GANDHINAGAR, SOUTH 24 PARGANAS 743347 WEST BENGAL

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18 . SRI. RAJNEESH MUTHA S/O OM PRAKASH MUTHA AGED ABOUT 44 YEARS, OPP 21 SECTOR, 20-E-29, ADARSH NAGAR JODHPUR-342001 RAJASTHAN

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...PETITIONERS

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(BY SMT. KUMARI M., ADVOCATE)

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AND:

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1 . KARNATAKA STATE OPEN UNIVERSITY MUKTHAGANGOTHRI, MYSORE-575 006 REP BY ITS REGISTRAR

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2 . UNIVERSITY GRANTS COMMISSION BAHADUR SAFAR MARG, NEW DELHI-110 002 REP BY ITS SECRETARY

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…RESPONDENTS

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(BY SRI RAJENDRA KUMAR SUNGAY T.P., ADVOCATE FOR R1; SRI. H.R.SHOWRI, ADVOCATE FOR R-2)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO ISSUE MARKS CARDS AND DEGREE CERTIFICATES TO THE PETITIONERS FORTHWITH AND DIRECT THE R1 UNIVERSITY TO VERIFY THE EDUCATIONAL QUALIFICATIONS OF STUDENTS ADMITTED THROUGH COLLABORATIVE INSTITUTIONS UP TILL THE ACADEMIC YEAR 2012-12, AS AND WHEN SOUGHT BY THE EMPLOYERS.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.12.2023 COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed by the students who claim that they have completed degree/postgraduate courses at respondent No.1-University during academic year 2008-09 to 2012-13 to the non-technical courses. The common grievance of all these petitioners is that petitioners who are residents of different parts of the country having come to know about respondent No.1-University imparting higher education through Distance Education Mode got themselves admitted through respondent No.1-University through their respective study centres during academic years 2010-11 to 2012-13 for various UG and PG courses under Distance Education Mode.

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The petitioners' grievance is that though several representations are submitted to respondent No.1-University requesting for issuance of degree certificate, it is contended that respondent No.1-University has not acted upon the request and no action is taken in that regard. The petitioners have contended that respondent No.1 has declined to issue

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degree certificate on the ground that unless respondent No.2University Grants Commission (UGC) grants permission, the University would not be in a position to issue marks cards/degree certificates. The petitioners are also placing reliance on the judgment rendered by this Court in identical cases. The petitioners claim that this Court has issued mandamus to the respondent No.1-Univeristy to issue marks cards and degree certificates.

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The respondent No.1-University has contested the

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petition by filing statement of objections. The respondent No.1 has contended that petitioners though claim to have been admitted to various UG and PG courses and have completed courses through study centres situated in State of West Bengal and Orissa, however, have not disclosed the names of the study centres. The respondent No.1 justified its action and has contended that respondent No.2 being Apex body has discontinued its recognition given to the respondent No.1 from academic year 2013-14 onwards on the ground of

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violation of terms and conditions of recognition and also on the ground that study centres of respondent No.1-University have found to be located outside territorial jurisdiction of State of Karnataka and that the study centres are found to be imparting education in both technical as well as management courses without obtaining approval from AICTE.

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The respondent No.1 has also contended that the petitioners cannot place reliance on the judgment rendered in W.P.No.34255/2016 dated 27.06.2016. It is contended that the relief granted by this Court in the above said writ petition pertains to in-house students who were admitted directly to respondent No.1-University through Regional centres established by respondent No.1 and those centers are situated within the State of Karnataka and they were admitted upto academic year 2012-13 during which period respondent No.1University had institutional recognition conferred by respondent No.2-UGC. The respondent No.1 has contended that the present petitioners are admittedly students outside

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State of Karnataka and were admitted to academic collaborative institution/study centres which were not recognized by UGC and therefore, direction issued by the coordinate Bench of this Court in the judgment cited supra has no application to the present writ petition.

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The respondent No.1 has also placed reliance on communication sent by respondent No.2 dated 23.03.2023 which is produced along with statement of objections as per Annexure-R6. Referring to Annexure-R6, the respondent No.1 has contended that respondent No.1-Univeristy is not restrained to issue degree certificates only in respect of those duly recognized programs and period in which norms of territorial jurisdiction and other conditions such as period of recognition, no-collaborative arrangements and other UGC directives, etc., have been complied.

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Heard learned counsel appearing for the

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petitioners, learned counsel appearing for respondent No.1

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and learned counsel appearing for respondent No.2. Perused the material on record. I have also examined the averments made in the writ petition and statement of objections filed by respondent No.1-University. I have also adverted to the directions issued by this Court in W.P.No.24293/2021 and also the findings recorded by this Court in W.P.No.34255/2016.

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The coordinate Bench of this Court in batch of petitions bearing W.P.No.32792/2019 and connected petitions was dealing with cause of the students who had completed the course and were found to be "in-house system" students for non-technical courses has held as under:

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"17. As already noticed by me, this contention does not detract from the fact that KSOU Act, 1992, is a self contained 97 enactment and it has the power and mandate to run permissible courses, specifically non technical courses, in the ‘In-House System’. The fact that UGC is the summit academic regulatory body created under UGC Act, 1956, with the mandate of setting and maintaining academic standards in the field of higher education is no longer open to question. It is not necessary to refer to the various provisions of UGC Act, 1956, for the current purpose in view of catena of decisions rendered by the Apex Court.

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18. In ANNAMALAI UNIVERSITY, REP. BY REGISTRAR v. SECRETARY TO GOVERNMENT, INFORMATION AND TOURISM DEPARTMENT AND OTHERS, the Hon’ble Supreme Court had an occasion to consider the interplay of the IGNOU Act, 1985 and the provisions of UGC Act, 1956, and thereafter has unequivocally declared that the Universities constituted under the State Universities Act and also the Universities constituted by the parliament are all amenable to the regulatory control of UGC, insofar as, setting academic standards and maintenance of same is concerned.

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“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 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 Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.

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41. Was the alternative system envisaged under the Open University Act in substitution of the formal

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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.

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42. The provisions of the UGC 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), (g) and (h) of sub-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 allpervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof.

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43. Indisputably, as has been contended by the learned counsel for the appellant as also the learned Solicitor General that the Open University Act was enacted to achieve a specific object. It opens new vistas for imparting education in a novel manner. Students do not have to attend classes regularly. They have wide options 99 with regard to the choice of subjects but the same, in our opinion, would not mean that despite a parliamentary Act having been enacted to give effect to the constitutional mandate contained in Entry 66 of List I of the Seventh Schedule to the Constitution of India, activities and functions of the private universities and open universities would be wholly unregulated.

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44. It has not been denied or disputed before us that in the matter of laying down qualification of the teachers, running of the University and the matters provided for under the UGC Act (sic the Regulations) are applicable and binding on all concerned. The Regulations framed, as noticed hereinbefore, clearly aimed at the open universities. When the regulations are part of the statute, it is difficult to comprehend as to how the same which operate in a different field would be ultra vires the parliamentary Act. IGNOU has not made any regulation; it has not made any ordinance. It is guided by the Regulations framed by UGC. The validity of the provisions of the Regulations

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has not been questioned either by IGNOU or by the appellant University. From a letter dated 5-5-2004 issued by Mr H.P. Dikshit, who was not only the ViceChancellor but also the Chairman of DEC of IGNOU it is evident that the appellant University has violated the mandatory provisions of the Regulations.

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45. The amplitude of the provisions of the UGC Act vis-à-vis the universities constituted under the State Universities Acts which would include within its purview a university made by Parliament also is now no longer res integra.

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55. The submission of Mr K. Parasaran that as in compliance with the provisions contained in Regulation 7, UGC had been provided with information in regard to instructions through non-formal/distance education relating to the observance thereof by itself, in our opinion, would not satisfy the legal requirement. It is one thing to say that informations have been furnished but only because no action had been taken by UGC in that behalf, the same would not mean that an illegality has been cured. The power of relaxation is a statutory power. It can be exercised in a case of this nature.

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56. Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non-

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compliance therewith would entail its consequences. The power of relaxation conferred on UGC being in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the Regulations on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If mandatory provisions of the statute have not been complied with, the law will take its own course. The consequences will ensue.

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57. Relaxation, in our opinion, furthermore cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an administrative authority, it would be void. Such a void order cannot be validated by inaction.

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58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5-5-2004 that the

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appellant University had no jurisdiction to confer such degrees, in our opinion, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of the UGC Act. When mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect.

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59. The provisions of the UGC Act are not in conflict with the provisions of the Open University Act. It is beyond any cavil of doubt that the UGA Act shall prevail over the Open University Act. It has, however, been argued that the Open University Act is a later Act. But we have noticed hereinbefore that the nodal Ministry knew of the provision of both the Acts. The Regulations were framed almost at the same time after passing of the Open University Act. The Regulations were framed at a later point of time. Indisputably, the Regulations embrace within its fold the matters covered under the Open University Act also.”

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(Emphasis supplied)

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19. The public notice dated 16.06.2015 issued by the UGC reads as follows:

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“F.No.UGC/DEB/8/KSOU/1/2015 16th June,2015

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Public Notice

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Karnataka State Open University, MysoreDiscontinuation of recognition of programmes through ODL mode

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1. Karnataka State Open University, Mysore, in collaboration with private institutions/entities/coaching centres spread all over the country and even abroad, has been offering programmes through distance learning mode by blatantly flouting the norms, guidelines and directives of University. Grants Commission and erstwhile Distance Education Council of Indira Gandhi National Open Universtiy, New Delhi. Taking cognizance of this fact, the programmes offered by KSOU, Mysore has not been recognized by UGC beyond 2012-13. This has been done after issue of a Show Cause notice to them on 10.06.2011 and after considering their response including personal hearing of the official of the University.

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2. It has, however, been noticed that despite this the university remained underterred and is continuing to offer programmes through distance learning mode in violation of the UGC policy on territorial jurisdiction vide UGC public notice dated 27th June, 2013. The university has also been offering professional/technical programmes in violation of the norms of the concerned regulatory bodies and without their approval. Moreover, the university has been offering engineering programmes, despite clear directions of Ministry of Human Resource of Development vide their

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D.O. letter No.6-7/2009-DL dated 29th July, 2009 and DEC letter dated 13th August, 2009 and recent UGC public notice dated 11th March, 2015 (All the three letters available on UGC DEB website). The university has also started offering online programmes, which are not recognized by UGC, as an exclusive method of distance education.

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3. The General Public, students and other stake holders are, therefore, cautioned through this public notice against the wrong reporting/publicity in newspaper and television by the university about its territorial jurisdiction and about validity of the recognition of its programmes, including professional/technical programmes. Taking admissions to such programmes may jeopardize the career of the students, in view of the absence of recognition of the programmes of the university by UGC.

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Sd/(Jaspal S. Sandhu) Secretary, UGC”

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20. A close reading of the above public notice shows that UGC has rightly taken umbrage at the KSOU offering its courses through ACIS by facilitating opening of study centres/fracnchises all over the country and also through them offering technical courses to large number of students. UGC has also taken exception to KSOU offering such courses beyond its territorial jurisdiction, understably, because it is well-neigh impossible for

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the KSOU with its limited resources to oversee the standard of instructions imparted in such far-flung centres. However, the present petitioners are all ‘In-House System’ students, who have taken non technical courses and as per the norms fixed under KSOU Act, 1992 and its statutes and ordinance and students have successfully completed the course and have passed the examinations. It is also true that in view of the superior regulatory position accorded to UGC and in view of the DEC forming a part of UGC itself and same requiring the KSOU seeking formal recognition/approval for the programmes run by it, there was an obligation on the KSOU to formally apply and secure recognition/approval from DEC of the UGC. Admittedly for the courses for Academic Years 2013-14 and 2014-15 to which these petitions belong KSOU had not taken such recognition."

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The coordinate Bench in the above cited judgment, while taking cognizance of the objections raised by the respondent No.2 held that it is not the case of respondent No.2 that respondent No.1 which admitted students in a nontechnical course through in-house system had fallen short of any of the standards set up by it under the provisions of UGC Act. The coordinate Bench was dealing with students admitted during academic year 2013-14 and 2014-15 and the UGC has raised objection that during these academic years, respondent

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No.1 was imparting educational degree and UG courses without obtaining recognition/approval for those relevant academic years from DEC of the UGC. The coordinate Bench not acceding to the objections raised by the respondent No.2UGC allowed the writ petition and issued the following directions:

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"(1) Issue a writ of mandamus directing the KSOU to issue marks cards and degree certificates to these petitioners, if the petitioners or such among them have undergone the courses prescribed and passed the examinations in terms of KSOU Act, 1992, statutes and ordinances framed thereunder within a period of 2 months.

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(2) Issue a writ of mandamus to State of Karnataka or KPSC, as the case may be, or to both, to consider the applications of such of the petitioners as have obtained marks cards and degree certificates in terms of (1) above for the purpose of employment under the State of Karnataka and its instrumentalities.

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(3) Issue a writ of mandamus to UGC to consider the cases of the petitioners, who have taken the courses as indicated in the writ petitions through instructions imparted by ODL and In-House System of

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KSOU during the Academic Years 2013-14 and 201415 in accordance with law after holding enquiry regarding violations of any substantial provisions of the UGC Act, 1956 and UGC Regulations, 1985, for the specific purpose of ascertaining whether KSOU has committed any infraction in imparting instructions, which has bearing on the maintenance of academic standards.

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(4) The enquiry shall be finalized within 6 weeks after giving full opportunity to KSOU to place all the necessary material before the Enquiring Committee of UGC."

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In the light of directions issued by the coordinate

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Bench in respect of students who have pursued degree courses who were imparted courses through in-house system, let me examine as to whether petitioners case can be considered in the light of directions issued by the coordinate Bench in the judgment cited supra.

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Admittedly, the petitioners in the present case have completed their respective courses which is indicated in para 4

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and para 5 of the writ petition. They have attended classes conducted by study centres. The respondent No.1-University in its statement of objections is placing reliance on a Circular dated 08.04.2021 wherein it proposes to hold convocation to the students who were enrolled on or before academic year 2012-13. The respondent No.1 has, however, resolved to issue convocation provided there is compliance of the notice issued by respondent No.2 on 18.08.2021, wherein respondent No.2 has insisted that degree certificates can be issued provided respondent No.1-University had institutional recognition conferred by the respondent No.2 and there was a specific direction not to issue any degrees where either respondent No.1-University was not recognized or territorial jurisdiction is not complied. The respondent No.2 has not filed statement of objections and therefore, it is not clear as to whether the present petitioners have completed their course under duly recognized programs in which norms of territorial jurisdiction and other conditions such as period of recognition,

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and other UGC directives are effectively complied by respondent No.1-University. Therefore, in the light of the directions issued by the coordinate Bench in the judgment cited supra, I am of the view that petitioners' grievance have to be dealt with by the respondent No.2-UGC in coordination with respondent No.1-University.

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In view of the above, writ petition is allowed in the following terms and I proceed to pass the following:

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ORDER

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i) The respondent No.2-UGC is hereby directed to consider the case of the petitioners and hold an enquiry as to whether the course taken by the petitioners through respondent No.1-University is under duly recognized program and also in compliance of direction issued by the respondent No.2 in regard to territorial jurisdiction and other UGC directives. The respondent No.2 shall also ascertain as to whether respondent No.1 has committed any infraction in imparting instructions/course;

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ii) The respondent No.1-University shall furnish all the details of the students indicating that they have undergone courses prescribed and have also cleared the examination in terms of KSOU Act, 1992;

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iii) The respondent No.2 shall also consider as to whether it was permissible for respondent No.1 to impart course beyond territorial jurisdiction of Karnataka State and whether such academic collaborative institutions/study centres had prior approval from the competent authority to impart degree courses through study centres located beyond Karnataka State. If the study centres located beyond territorial jurisdiction of Karnataka State had a prior approval and if the students who had taken admissions prior to 2012-13, the respondent No.1-University is bound to release the results as well as degree certificates of the students who have studied in various courses of respondent No.1-University;

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iv) This exercise shall be completed within a period of three months from the date of receipt of copy of this order;

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v) The pending interlocutory application, if any, does not survive for consideration and stands disposed of.

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Sd/JUDGE

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Sri Debasish Das v. Karnataka State Open University

Case brief

What is this about?

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Sri Debasish Das v. Karnataka State Open University

Case brief

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