Vinit Garg and Others v. University Grants Commission and Others
SANJIV KHANNA, J.
1. The petitioners, 92 in number, in this writ petition under Article
32 of the Constitution of India have prayed for directing the University
Grants Commission, (hereinafter referred to as ‘UGC’) to issue a
clarification that the degrees of Bachelor of Technology (hereinafter
referred to as ‘B.T ech.’) acquired by them through open and distance
learning mode from the Thapar Institute of Engineering and Technology,
Patiala, (hereinafter referred to as ‘TIET, Patiala’) are valid, recognised
and should be treated at par with degrees granted to regular students
who have undertaken such courses in TIET, Patiala and other recognised
universities.
2. UGC is refusing to treat the technical degrees issued by TIET,
Patiala under distance learning mode as valid, primarily for the reason
that the B.Tech. courses conducted by TIET, Patiala were without their
approval and approval of the All India Council for Technical Education
(hereinafter referred to as ‘AICTE’).
3. The petitioners who are diploma holders in Civil/ Computer
Science/ Electrical/ Mechanical Engineering and working in the
Government of Punjab have stated that they were selected for the
B.Tech. degree course through the distance mode programme on the
basis of competitive examination conducted by TIET, Patiala, which is
deemed to be a university under Section 3 of the University Grants
Commission Act, 1956 (hereinafter referred to as ‘UGC Act’). The
petitioners highlight that TIET, Patiala, rated as one of the premier
engineering universities/colleges by the Ministry of Human Resource
Development, Government of India, was set up in 1956 for promoting
the study of technical education and has a 250 acre campus located in
Patiala with teaching faculty strength of 391, including 301 Ph.D. holders,
and undertakes 11 undergraduate courses and 23 postgraduate courses.
The total strength of students is more than 8000 with nearly 700 research
students doing Ph.D. The National Assessment and Accreditation Council,
an autonomous body established by the Ministry of Human Resource
Development, Government of India, has accredited the said institution/
deemed to be university Grade ‘A’ status besides placing the institution
in Tier-I accreditation. Distance Education Council (hereinafter referred
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS
to as ‘DEC’) vide its letter dated 3 rd September , 2007 had granted
provisional recognition to TIET, Patiala for offering programmes through
distance mode for a period of one year on the basis of which TIET,
Patiala had of fered B.T ech. degree in Civil / Computer Science /
Electrical / Mechanical Engineering to working professionals who already
had a diploma and had at least two years’ experience in the respective
branches in engineering in the academic years 2007-08 and 2008-09.
No admissions were made after 29 th July, 2009. The petitioners had
taken admission in the prestigious deemed to be university verily believing
that all approvals were in place. The petitioners, relying on the judgment
of this Court in Bharathidasan University and Another v. All India
Council for T echnical Education and Others ,1 have ar gued that a
deemed to be university is not required to seek prior approval of the
AICTE to start a department for imparting a course or a programme in
technical education. Reference was made to paragraph 49 of the
judgment of this Court in Orissa Lift Irrigation Corporation Limited
v. Rabi Sankar Patro and Others 2 (hereinafter referred to as Orissa
Lift Irrigation Corporation Limited-I ) to assert that TIET, Patiala,
being a premier institution authorised to undertake courses and issue
degrees in the aforesaid technical fields, was not required to take any
approval of the AICTE. Reliance was also placed on the order and
judgment dated 10th April, 2018 in Civil Appeal Nos. 3697-3698 of 2018
in Jawaharlal Nehru Technological University v. The Chairman and
Managing Director, Transmission Corporation of Telangana Limited.
There were no off-campus centres or study centres and all instruction,
practicals and examinations were conducted on the campus of TIET,
Patiala using the same faculty and infrastructure as used in the traditional
B.Tech. courses. The studies were of high standard as the students had
to pass 42 subjects with practicals to earn the degree. Out of 1 168
students admitted to the B.Tech. courses through distance learning mode,
only 822 students were awarded degree.
4. We may at the outset record that the petitioners have given up
and not raised the contention that the decision authored by one of us
(Uday Umesh Lalit, J.) in Orissa Lift Irrigation Corporation Limited-
I is per incuriam for the ratio is contrary to the decision in
1 (2001) 8 SCC 676
2 (2018) 1 SCC 468
11
Bharathidasan University (supra). Indeed, such contention cannot be
accepted as the latter decision has been considered in Orissa Lift
Irrigation Corporation Limited-I .
5. We record our inability to accept the contentions raised by the
petitioners, for they are misconstruing the judgment of this Court in Orissa
Lift Irrigation Corporation Limited-I which settles the controversy
beyond any doubt and debate.
6. The UGC Act was legislated for coordination and determination
of standards of higher education in India with commandment to the UGC
to take such steps as may be necessary for promotion and coordination
of higher education in universities and institutions. The UGC, therefore,
fixes and ensures maintenance of standards in teaching, examination
and research in higher education. To fix and enforce these standards,
the UGC has framed rules and regulations, and issues guidelines under
the UGC Act.
7. Referring to the UGC Act in Annamalai University
Represented by Registrar v. Secretary to Government, Information
and Tourism Department and Others ,3 this Court had observed that
no relaxation can be granted with regard to the basic things necessary
for conferment of a degree and if the mandatory provisions are not
complied with by an administering authority, the action would be void.
Decision of this Court in Annamalai University (supra) has some
relevance for it had examined the interplay between the provisions of
the UGC Act and Indira Gandhi National Open University Act, 1985
(hereinafter referred to as ‘Open University Act’) and the purported
repugnance between the two. The UGC Act, it was observed, was
enacted to make provisions for coordination and determination of
standards in universities and for this purpose, the UGC was established
by the Central Government in terms of Section 4 of the UGC Act with
its powers and functions laid down in Chapter III. Section 12 of the
UGC Act provides for functions of the UGC, relevant provisions of which
are reproduced as under:
“12. Functions of the Commission .—It shall be the general
duty of the Commission to take, in consultation with the
Universities or other bodies concerned, all such steps as it may
think fit for the promotion and co-ordination of University education
3 (2009) 4 SCC 590
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
and for the determination and maintenance of standards of
teaching, examination and research in Universities, and for the
purpose of performing its functions under this Act, the Commission
may—
x x x
(d) recommend to any University the measures necessary for the
improvement of University education and advise the University
upon the action to be taken for the purpose of implementing such
recommendation;
x x x
(i) require a University to furnish it with such information as may
be needed relating to the financial position of the University or the
studies in the various branches of learning undertaken in that
University, together with all the rules and regulations relating to
the standards of teaching and examination in that University
respecting each of such branches of learning;”
Section 22 of the UGC Act relates to the rights of a university/
deemed university/institution to confer degrees and sub-section (1)
thereof reads as under:
“22 . Right to confer degrees .—(1) The right of conferring or
granting degrees shall be exercised only by a University established
or incorporated by or under a Central Act, a Provincial Act or a
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.”
In Annamalai University (supra), the Open University Act, it
was held, was enacted to establish and incorporate an open university at
the national level for the introduction and promotion of open university
and distance education systems in the educational pattern of the country
and for coordination and determination of standards in such system.
Recording the contention that the distance education programme
attenuates the rigidity of the traditional system requiring attendance in
class rooms that disincentivises many learners, this Court in Annamalai
University (supra), referring to the UGC Act and the role of the UGC,
had observed as under:
13
“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 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.
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 informal system is in the mode and manner in which
education is imparted. The UGC Act was enacted for
effectuating co- ordination 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 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 co- ordination 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.
[...]”
8. Annamalai University (supra) makes a reference to an earlier
judgment in State of T amil Nadu and Another v. Adhiyaman
Educational and Research Institute and Others 4 in which this Court
had, with regard the enactment of the UGC Act by Parliament in exercise
of power under Entry 66 of List-I, observed as under:
4 (1995) 4 SCC 104
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
“41. What emerges from the above discussion is as follows:
(i) The expression ‘coordination’ used in Entry 66 of the Union
List of Seventh Schedule of the Constitution does not merely mean
evaluation. It means harmonisation with a view to forge a uniform
pattern for a concerted action according to a certain design, scheme
or plan of development. It, therefore, includes action not only for
removal of disparities in standards but also for preventing the
occurrence of such disparities. It would, therefore, also include
power to do all things which are necessary to prevent what would
make ‘coordination’ either impossible or difficult. This power is
absolute and unconditional and in the absence of any valid
compelling reasons, it must be given its full effect according to its
plain and express intention.”
Reference was also made to Osmania University T eachers’
Association v. State of Andhra Pradesh and Another5 wherein, with
regard to the responsibility entrusted upon the UGC under the UGC Act,
it was held as under:
“30. The Constitution of India vests Parliament with exclusive
authority in regard to coordination and determination of
standards in institutions for higher education. The Parliament
has enacted the UGC Act for that purpose. The University
Grants Commission has, therefore, a greater role to play in
shaping the academic life of the country. It shall not falter or
fail in its duty to maintain a high standard in the universities.
Democracy depends for its very life on a high standard or
general, vocational and professional education. Dissemination
of learning with search for new knowledge with discipline
all round must be maintained at all costs. It is hoped that
University Grants Commission will duly discharge its
responsibility to the nation and play an increasing role to bring
about the needed transformation in the academic life of the
Universities.”
9. Accordingly, in Annamalai University (supra) it was held that
the UGC Act would prevail over the Open University Act, observing:
“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 UGC Act shall prevail over the Open
5 (1987) 4 SCC 671
15
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 provisions
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.”
10. In Orissa Lift Irrigation Corporation Limited-I , reference
was made to All India Council for Technical Education Act, 1989
(hereinafter referred to as ‘AICTE Act’) and distinction was drawn
between ‘technical education’ and ‘technical institution’ as defined in
Section 2(g) and 2(h) respectively to observe that functions of the AICTE
stipulated under sub-clauses (a), (d), (e), (f), (l) and (n) of Section 10 of
the AICTE Act are concerned with the broader facets of ‘technical
education’, while functions enumerated under sub-clauses (k), (m), (p)
and (q) deal with matters concerning ‘technical institutions’ and the
functions as set out in sub-clauses (g) and (o) apply to both ‘technical
institutions’ and universities imparting ‘technical education’. Sub-clauses
(b), (d) and (f) of Section 10 deal with, inter alia, coordination of the
technical education in the country at all levels; promoting innovation,
research and development, establishment of new technologies, generation,
adoption and adaptation of new technologies to meet the development
requirements; and promoting effecting link between technical education
and systems and other relevant systems. Drawing on the distinction
between ‘technical education’ and ‘technical institution’ and multifarious
functions of the AICTE prescribed by Section 10 of the AICTE Act, it
was held that the AICTE is the sole repository of power to lay down
parameters or qualitative norms for ‘technical education’ and it would,
therefore, not matter whether the term ‘technical institution’ would exclude
a university/deemed to be university . What should be course content,
what subjects should be taught and what should be the length and duration
of the courses as well as the manner in which those courses be conducted
is a part of the lar ger concept of ‘technical education’. Any idea or
innovation in that field is also a part of the concept of ‘technical education’
and must, as a matter of principle, be in the exclusive domain of the
AICTE.
11. Accordingly, the Court in Orissa Lift Irrigation Corporation
Limited-I distinguished the decision in Bharathidasan University
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
(supra), which had, relying upon the definition in clause 2(h) on the
meaning of the term ‘technical institution’, held that a deemed to be
university established under a state law was entitled to start courses in
‘technical education’ without any approval of the AICTE. This was done
by limiting Bharathidasan University’s (supra) application to courses/
programmes integrally adjunct/connected to the sanctioned and permitted
courses and programmes, and not to new and different courses/
programmes like award of B.T ech. degrees through distance learning
mode. On role of the AICTE and distance learning as a mode for acquiring
B. Tech degrees, it was held in Orissa Lif t Irrigation Corporation
Limited-I that:
“48. Technical education leading to the award of degrees in
Engineering consists of imparting of lessons in theory as well
as practicals. The practicals form the backbone of such
education which is hands-on approach involving actual
application of principles taught in theory under the watchful
eyes of demonstrators or lecturers. Face to face imparting
of knowledge in theory classes is to be reinforced in practical
classes. The practicals, thus, constitute an integral part of
the technical education system. If this established concept
of imparting technical education as a qualitative norm is to
be modified or altered and in a given case to be substituted
by distance education learning, then as a concept AICTE
ought to have accepted it in clear terms. What parameters
ought to be satisfied if the regular course of imparting technical
education is in any way to be modified or altered, is for AICTE
alone to decide. The decision must be specific and
unequivocal and cannot be inferred merely because of
absence of any guidelines in the matter . No such decision
was ever expressed by AICTE. On the other hand, it has
always maintained that courses leading to degrees in
Engineering cannot be undertaken through distance education
mode. Whether that approach is correct or not is not the
point in issue. For the present purposes, if according to AICTE
such courses ought not to be taught in distance education
mode, that is the final word and is binding—unless rectified
in a manner known to law. Even National Policy on Education
while emphasising the need to have a flexible, pattern and
programmes through distance education learning in technical
and managerial education, laid down in Para 6.19 that AICTE
will be responsible for planning, formulation and maintenance
17
of norms and standards including maintenance of parity of
certification and ensuring coordinated and integrated
development of technical and management education. In our
view, whether subjects leading to degrees in Engineering could
be taught in distance education mode or not is within the
exclusive domain of AICTE. The answer to the first limb of
the first question posed by us is therefore clear that without
the guidelines having been issued in that behalf by AICTE
expressly permitting degree courses in Engineering through
distance education mode, the deemed to be universities were
not justified in introducing such courses.”
From the dictum laid down above, it is plainly clear that approval
of the AICTE was mandatory for starting the aforesaid courses.
Admittedly, approval of the AICTE was not obtained by TIET, Patiala.
12. We would now revert to the question of approval of the UGC.
In Orissa Lift Irrigation Corporation Limited-I , reference was made
to paragraphs 4 and 5 of the ‘Guidelines for Establishing New
Departments Within the Campus, Setting Up of Off-Campus Centre(s)/
Institution(s)/Off-Shore Campus and Starting Distance Education
Programmes by the Deemed Universities’ (hereinafter referred to as
‘2004 Guidelines’), issued by the UGC which dealt with the procedure
to be followed by deemed to be universities offering distance education
programmes, which read as under:
“4. Distance education.— 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
centre(s) can be opened only with the specific approval of
Distance Education Council and UGC.
5. Ex post facto approval.— The deemed universities shall
obtain the ex post facto approval of the GOI/UGC/DEC,
whichever applicable within a period of six months in the
following cases:
I. Continuation of all the departments opened in the campus of
the deemed universities and off-campus study centre(s)/
institutions/off-shore campus started without the prior approval
of the UGC.
II. Distance education programme(s)/study centre(s) started
without the specific approval of the DEC/UGC.”
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
Paragraph 4 makes it crystal clear that post the 2004 Guidelines,
every deemed to be university would require approvals of the UGC and
DEC, for starting any degree course through open and distance learning
mode. The condition of approval was mandatory. It is not the case of the
petitioners or TIET, Patiala that the latter had taken prior approval of the
UGC for the B.Tech. degrees obtained through distance learning mode.
Paragraph 5 relates to ex-post facto approval of the UGC/DEC for
continuation of distance education programmes/study centres started
without specific approval of the UGC/DEC. Paragraph 5 is not applicable
in the present case as the degree courses were started post enactment
of the 2004 Guidelines.
13. Faced and conscious of the clear violation of paragraph 4 of
the 2004 Guidelines and absence of the AICTE’s approval, learned senior
counsel for the petitioners had relied on paragraph 49 of Orissa Lift
Irrigation Corporation Limited-I , which reads as under:
“49. We now move to the second limb of the first question. Under
the 1994 AICTE Regulations, “no courses or programmes shall
be introduced by any technical institution, university including a
deemed university or university department or college except with
the approval of the Council”. Bharathidasan declared the said
Regulation to the extent it required a university to have approval
for introducing any courses or programmes in technical education,
to be bad. Same thought was amplified in Assn. of Management
of Private Colleges to say that affiliated colleges of the University
were entitled to the same protection. The question is, whether a
deemed to be university is also entitled to the same protection.
The matter can be considered under two categories:
(a) The first category could be of a deemed to be university, which
was conferred such status for its excellence in a field of
technological subject, is now desirous of introducing courses or
programmes integrally connected with the area in respect of which
it was conferred deemed to be university status. For example, an
Engineering college which because of its excellence in the field
was conferred deemed university status, now wishes to introduce
courses in subjects like Robotics or Nano Technology which are
Engineering subjects and integrally connected with its own field
of excellence.
19
(b) The second category could be of a deemed to be university
which was conferred such status for its excellence in subjects
which are completely unrelated to the field in which new courses
are sought to be introduced. For example, an institution engaged
in teaching Fine Arts and Music, for its excellence in that chosen
field—or for that matter an institution engaged in teaching Law
had been conferred such status. Can such a deemed to be university
claim immunity from regulatory control of AICTE and say that it
is entitled, as a matter of right, to introduce courses in Engineering
on the strength of the decision of this Court in Bharathidasan?”
In our opinion, the petitioners and TIET, Patiala are misconstruing
paragraph 49 of Orissa Lift Irrigation Corporation Limited-I . The
aforesaid paragraph refers to the 1994 Regulations issued by the AICTE
under which no courses or programmes could be introduced by any
technical institution/ university , including a deemed university or a
university department or college, except with approval of the AICTE. In
Bharathidasan University (supra) this mandate of the 1994 Regulations
was declared to be bad to the extent that it had required the university to
take approval for introducing any course or programme in technical
education. Same opinion was expressed in Association of Management
of Private Colleges v. All India Council for T echnical Education
and Others6 to state that affiliated colleges of the university are entitled
to the same protection. Thereupon, in Orissa Lift Irrigation Corporation
Limited-I a distinction was made by creating two categories of deemed
to be universities – Category-I, i.e. such deemed to be universities that
have been conferred status of ‘excellence’ in the field of technical subjects
and desire to introduce courses or programmes ‘integrally connected’
with the area of subjects for which they had been conferred deemed to
be university status. Clarifying this, the Court had cited an example of
an engineering college of excellence that has been conferred deemed to
be university status and now wish to introduce courses in new or
specialised subjects like robotics and nanotechnology , which subjects
were integrally connected to the university’ s own field of excellence.
Category-II would be of those universities that have been conferred
deemed to be university status for excellence in subjects, but want to
introduce new courses unrelated to the field for which they were conferred
status of excellence. In the latter category, the deemed to be university
6 (2013) 8 SCC 271
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
cannot claim immunity from regulatory control of the AICTE and must
take approval of the AICTE. Paragraph 49, we would like to clarify ,
deals with universities including deemed to be universities imparting higher
education for degree courses/programmes through regular mode. This
paragraph does not specifically deal with or confer any right upon the
deemed to be universities to start distance education courses, even if
integrally connected with the approved regular courses.
14. The foregoing analysis becomes clear when we read Orissa
Lift Irrigation Corporation Limited-I in its entirety , particularly the
immediately preceding paragraph, i.e. paragraph 48 as quoted above,
wherein it has been specifically stipulated and mandated that whether
subjects leading to degrees in engineering would be taught in distance
education mode or not is within the exclusive domain of the AICTE.
15. In view of the aforesaid statutory provisions and lack of prior
approval of the UGC or AICTE, we do not think that TIET, Patiala was
competent to award graduation degrees in technical courses via distance
mode.
16. In Orissa Lift Irrigation Corporation Limited-I , the Court
also made a distinction between students who had taken admission in
deemed to be universities offering technical degrees through distance
learning in the academic years 2001 to 2005 and 2005-2006 onwards.
The reason for distinction was paragraph 5 of the 2004 Guidelines and
ex-post facto approvals granted by the UGC and DEC to deemed to be
universities that had offered technical degrees in the academic years
2001-2005. It was held that the said exercise of grant of ex-post facto
approvals was completely uncalled for and contrary to law and illegal.
Accordingly , the ex post facto approvals were set aside with the
consequential directions to recall all the engineering degrees granted
pursuant to the said approvals. However , conscious that the ex post
facto approvals were in terms of paragraph 5 of the 2004 Guidelines,
while suspending the degrees awarded to students who had been enrolled
during the academic years 2001 to 2005, the Court had given these students
an opportunity to appear and clear such examination under joint
supervision of the AICTE-UGC. It was observed:
“57. [T]he matter is required to be considered with some sympathy
so that interest of those students who were enrolled during the
academic sessions 2001-2005 is protected. Though we cannot
21
wish away the fact that the concerned Deemed to be Universities
flagrantly violated and entered into areas where they had no
experience and started conducting courses through distance
education system illegally , the over bearing interest of the
concerned students persuades us not to resort to recall of all the
degrees in Engineering granted in pursuance of said ex-post-facto
approval. However, the fact remains that the facilities available
at the concerned Study Centres were never checked nor any
inspections were conducted. It is not possible at this length of
time to order any inspection. But there must be confidence and
assurance about the worthiness of the concerned students. We,
therefore, deem it appropriate to grant some chance to the
concerned students to have their ability tested by authorities
competent in that behalf. We, therefore, direct that all the degrees
in Engineering granted to students who were enrolled during the
academic years 2001 to 2005 shall stand suspended till they pass
such examination under the joint supervision of AICTE-UGC in
the manner indicated hereinafter. Further, every single advantage
on the basis of that degree shall also stand suspended.”
The aforesaid directions were not in respect of any engineering
degree granted by deemed to be universities to candidates admitted/
enrolled post the academic year 2004-2005. Grant of any degree for
students enrolled post the academic year 2004-2005 was held as contrary
to law and illegal, and could not be treated as regular and at par with the
regular degrees. Therefore, paragraph 49 would not be of any avail to
the petitioners.
17. We would also refer to the second round of litigation as
applications were filed seeking clarification and modification of the
directions in Orissa Lift Irrigation Corporation Limited-I. The decision
dated 22nd January, 2018 in Orissa Lift Irrigation Corporation Limited
v. Rabi Sankar Patro and Others 7 (hereinafter referred to as ‘ Orissa
Lift Irrigation Corporation Limited-II ’) had decided several
applications of diploma holders who had enrolled for engineering or
B.Tech. degree in deemed to be universities through distance learning
mode. One of the contentions raised in the applications was that the
deemed to be universities awarding engineering degrees through distance
learning mode in Orissa Lift Irrigation Corporation Limited-I were
7 (2018) 2 SCC 298
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
not institutes of excellence in the field of engineering and, thus, there
would be a distinction between engineering degrees awarded through
distance education mode by deemed to be universities declared as
institutions of excellence and the degrees awarded by other deemed to
be universities. This contention was squarely rejected by referring to the
fact that engineering degrees through distance education mode awarded
by Vinayaka Mission’s Research Foundation in Orissa Lift Irrigation
Corporation Limited-I had been also declared to be invalid, though the
said institution in its field of activity and excellence included the subject
of engineering. Dealing with other contentions raised by the applicants,
the Court in Orissa Lift Irrigation Corporation Limited-II held as
under:
“25. We now turn to the general submission advanced by all the
learned counsel that the candidates after securing the degrees in
Engineering through distance education mode, have advanced in
career and that their ability was tested at various levels and as
such requirement of passing the examination in terms of the
judgment be dispensed within their case. We cannot make any
such exception. The infirmity in their degrees is basis and
fundamental and cannot be wished away . At the same time, we
find some force in their submission that if the suspension of their
degrees and all advantages were to apply as indicated in the
judgment, the candidates concerned may lose their jobs and even
if they were to successfully pass the test, restoration of their jobs
and present position would pose some difficulty.
The Court, therefore, granting a one-time relaxation to the
candidates who had enrolled themselves during the academic years 2001-
2005, held that candidates would, in terms of the judgment in Orissa Lift
Irrigation Corporation Limited I , be eligible to appear for the test
conducted by the AICTE.
18. Given the aforesaid ratio, we reject the plea that the petitioners
are entitled to relief as was granted to the petitioners in Orissa Lift
Irrigation Corporation Limited I and II . This contention is
unacceptable for the reason that in Orissa Lift Irrigation Corporation
Limited I and II , no relief was granted to the candidates who had
taken admission in 2005 or thereafter . Relief in the form of one-time
relaxation vide examination to be conducted by the AICTE was granted
to those candidates/students who had taken admission in academic years
beginning from 2001 and till 2004-2005.
23
19. TIET, Patiala in their additional affidavit have referred to the
correspondence with the DEC expressing their desire to start B.T ech.
courses in Civil Engineering/ Computer Sciences and Engineering/
Electrical Engineering/ Mechanical Engineering through distance learning
programme, vide their letter dated 17th May, 2006 and reply of the DEC
vide its letter dated 16 th June, 2006 that such approvals can only be
granted after evaluation of the course material by an expert committee
and for which TIET, Patiala should apply in the prescribed format with
requisite fee. Thereupon, TIET, Patiala had submitted an application in
the required format and an expert committee constituted by the Chairman
of the DEC had evaluated infrastructure and other services etc., provided
by TIET, Patiala. The expert committee, which included the Director ,
School of Engineering and Technology, IGNOU, gave a favourable report
subsequent to which the letter of provisional recognition dated 31st August,
2007 was issued by the DEC permitting TIET, Patiala to start the course.
Reference was also made to the press note dated 23rd May, 2007 released
by Press Information Bureau, Government of India, which had published
a list of universities including deemed to be universities offering distance
education. This list also included TIET, Patiala.
20. As already stated, the petitioners have also relied upon letter
dated 3rd September, 2007 written to TIET, Patiala by the DEC providing
them provisional recognition for one year in programmes offered through
distance mode. The said letter reads as under:
“INDIRA GANDHI NA TIONAL OPEN UNIVERSITY
Maindan Garhi, New Delhi – 110068, India
Phone: (O) 91-11-29535923-32, 29533340 (O)
Telefax: 91-11-295536668
Email: basuswaraj@hotmail.com
Website: www.ignou.ac.in/www.dec.ac.in
DISTANCE EDUCATION COUNCIL
F.No. DEC/Univ/State/07/5580
Dated: 03.09.2007
Prof. Swaraj Basu
Director
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
Sub: Provisional Recognition
Dear Sir,
This has reference to your application to the Distance Education
Council requesting for recognition of programmes offered through
distance mode by your University.
We would like to inform you that your university has been granted
provisional recognition for offering programmes (approved by the
statutory bodies of your university) through distance mode for a period
of one-year w.e.f. the date of issue of this letter .
However , for recognition of your institution for of fering
programmes through distance mode in the next academic year, i.e. from
June-July, 2008, you are requested to submit a fresh application in the
prescribed format developed by the DEC which may be downloaded
from the DEC website: www.dec.ac.in.
We would also like to inform you that that DEC has decided not
to insist on territorial jurisdiction to be allowed by institutions in offering
programmes through distance mode and on that matter, universities should
be governed by their own Acts and Statutes.
With regards,
Yours sincerely
Sd/-
(Swaraj Basu)
The Vice Chancellor
Thapar University
Patiala – 147004, Punjab”
The aforesaid letter states that TIET, Patiala had made an
application to the DEC requesting for recognition of programmes offered
through distance mode and that they had been granted provisional
recognition for offering such programmes. The letter records that an
application was submitted by TIET, Patiala but no specific reference
was made to the programmes or courses offered nor the date when the
application was filed is indicated. The letter also does not refer to approval
by the AICTE or UGC. It had further required TIET, Patiala to submit a
fresh application for the next academic year from June-July 2008.
25
21. We have already referred to the 2004 Guidelines issued by
the UGC and the AICTE Act to hold that TIET, Patiala had failed to
take their prior approval before starting B. Tech. degree courses through
distance education mode. Provisional recognition by the DEC being
contrary to the law would not matter for at best the DEC would be
equally guilty for violating the law in terms of 2004 Guidelines issued by
the UGC and the AICTE Act. The legal issue stands foreclosed and
cannot be argued in view of the clear dictum and ratio enunciated in
Orissa Lift Irrigation Corporation Limited-I . We would also refer to
the notification issued by the Government of India on 1 st March 1995
quoted in Orissa Lift Irrigation Corporation Limited-I on distance
education programme by deemed to be universities etc., which was to
the following effect:
“On the recommendation of the Board of Assessment for
Education Qualifications, the Government of India has decided that all
the qualifications awarded through Distance Education by the Universities
established by an Act of Parliament or S tate Legislature, Institutions
Deemed to be Universities under Section 3 of the UGC Act, 1956 and
Institutions of National importance declared under an Act of Parliament
stand automatically recognized for the purpose of employment to posts
and services under the Central Government, provided it has been approved
by Distance Education Council, Indira Gandhi Nation Open University,
K 76, Hauz Khas, New Delhi-1 10016 and wherever necessary by All
India Council for Technical Education, I.G. Sports Complex, I.P. Estate,
New Delhi.”
Clearly, therefore, in terms of the said notification also approval
of the AICTE was required.
22. TIET, Patiala accepts that no approval, provisional or otherwise,
was granted for the next academic year, i.e. June-July 2008, yet B.Tech.
degree programmes through distance mode for the academic year June-
July 2008 were of fered by TIET, Patiala contrary to the statutes and
law.
23. TIET, Patiala, to justify admissions in the academic year 2008-
2009 in their additional affidavit, have referred to correspondence and
submission of application to the UGC for offering B. Tech. degree courses
through distance education programme for the academic session i.e.
2008-2009. This is surprising as TIET, Patiala had not applied to the
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
UGC for the previous academic session i.e. 2007-2008. Thereafter, the
additional affidavit refers to correspondence exchanged between the
DEC and TIET, Patiala pursuant to which a Joint Expert Committee
was constituted comprising of members of the UGC, DEC and AICTE
to assess the administration and management of distance learning
programmes of fered by TIET, Patiala, which panel had visited their
premises on 2nd June, 2009 and had recommended the recognition of as
many as seven programmes for a period of five years. However , the
Central Government had, in exercise of powers under Section 20 of the
UGC Act and in terms of a policy decision, issued a notification on 29th
July, 2009 that the B.Tech. degrees would not be offered through open
distance learning programme. In view of this policy decision, the DEC
had to immediately withdraw the permission to various institutions to
conduct B.Tech. degree courses through distance education mode and
no further student was admitted in the current year and thereafter .
However, the notification states that those who had already been admitted
would have to pass practicals and written examination as may be
prescribed so as to obtain the B.Tech. degrees through distance education.
24. The submission/contention of the petitioners and TIET, Patiala
completely overlooks several developments, correspondence and policy
decisions taken which have been noticed in Orissa Lift Irrigation
Corporation Limited-I, particularly the notification issued by the AICTE
on 28th November, 2005 clearly stating that no technical institution of the
Government/ Government aided/ private institution, whether affiliated
or not to any University, shall start new courses or increase the intake
for the same without approval of the AICTE. Notification issued by the
Ministry of Human Resource Development, Government of India on 5th
April, 2006 in exercise of powers vested in the Central Government
under Section 20(1) of the UGC Act and Section 20(1) of the AICTE
Act had clarified the role of the UGC and AICTE for maintaining
standards of education and that the deemed to be universities are required
to maintain minimum standards prescribed by the AICTE for various
courses within the jurisdiction of the said Council. This was followed by
a joint public notice issued by the AICTE, UGC and DEC on 4th February,
2007 to the following effect:
“It has come to the notice of the University Grants Commission
(UGC), the All India Council for Technical Education (AICTE)
and the Distance Education Council (DEC), that some Universities,
27
Institutions Deemed to be Universities and other institutions are
offering technical education programmes in the ‘distance mode’
without the approval of the concerned Statutory Council.
All Universities, Institutions, Deemed to be Universities and other
institutions are hereby cautioned that running such programmes
and giving misleading advertisements regarding unapproved
‘distance mode courses and programmes of study , shall attract
severe action under the provisions of applicable laws, including
that of de-recognition and withdrawal of institutional approval;
It is hereby clarified, in the public interest that there are a number
of courses or programmes of study leading to Degree/Diploma or
other awards in Engineering & Technology , Management,
Computer Applications, Architecture & Town Planning, Pharmacy,
Hotel Management & Catering Technology, Applied Arts and
Crafts, etc. which have not been approved by the appropriate
Statutory Council for being conducted in the ‘distance mode’. It
is also reiterated that all courses or programmes of study in the
‘distance mode’ require the approval of DEC.”
The public notice had cautioned that the universities/ institutions/
deemed to be universities offering technical education programme through
distance education mode without approval of concerned statutory
authorities were doing so in contravention of the law and would be treated
severely. The last sentence of the notification had made it clear that in
addition to the concerned statutory councils, all courses and the
programmes offered for study in distance mode would require approval
of the DEC. A memorandum of understanding was arrived at on 10 th
May, 2007 among the UGC, AICTE and DEC to work in close co-
operation in pursuit of excellence in technical and general education
being imparted through distance and mixed mode in the country.
25. In any case these aspects and contentions were fully considered
in Orissa Lift Irrigation Corporation Limited-I and it has been held
that B.Tech. degrees could not have been awarded through distance
learning mode without the approval of the DEC and without any specific
approval of the AICTE and UGC and award of such degrees without
approval of the three were invalid and cannot be recognised.
26. Functioning of the DEC has come in for rather strong criticism
in several quarters. Till 2006, the DEC had approved about 45
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]
programmes of 23 universities out of applications for approximately 200
programmes. In 2007, the DEC repealed the programme approval process
and the system of institutional recognition was started. As per this decision,
all programmes approved by respective authorities of the institution were
deemed to have recognition of the DEC. As a result of this decision,
within a short span, the number of approved programmes increased to
over 3000 in 2010. The provisional recognition letter of the DEC would
uniformly state that before starting such programmes, the required
approvals from other regulatory bodies have to be obtained but the said
stipulation was not followed in most cases and provisional recognition
was granted by the DEC to technical programmes through distance mode
without recognition/approval of the AICTE or UGC. This had paved
way for commercialisation and was a retrograde step which had resulted
in deterioration of the quality of open learning programmes/degrees. After
burning its fingers, the DEC switched back to programme recognition.
The DEC itself was finally wound up in 2013.
27. In Orissa Lift Irrigation Corporation Limited-I , this Court,
took note of the order dated 29th December, 2012 issued by the Ministry
of Human Resource Development, Government of India in view of the
recommendations suggested in the Madhava Menon Committee report
for regulating the standards of education being imparted through distance
mode to hold that the unilateral approvals of the DEC were invalid. It
was observed:
“55. Para 3 of the notification dated 22.11.1991 which constituted
DEC shows that there was no representation for any Member or
representative of AICTE. The provisions of IGNOU Act show
that the Study Centres as defined in the IGNOU Act are that of
IGNOU and not of any other University or Institution. The concept
of distance education under sub-clause (v) of Section 5 is also in
relation to the academic programmes of IGNOU. It undoubtedly
has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with
other Universities but the IGNOU Act nowhere entitles IGNOU
to be the Controlling Authority of the entire field of distance
education of learning across the Country and in relation to
programmes of other Universities or Institutions as well. The Order
dated 29.12.2012 issued by MHRD therefore correctly appreciated
that DEC created under statute 28 of IGNOU Act could not act
as a regulator for other Universities. In any event of the matter ,
29
the policy Guidelines issued from time to time made it abundantly
clear that DEC alone was not entitled to grant permission for
open distance learning and appropriate permissions from the
requisite authorities were always required and insisted upon.
Despite such policy statements, DEC went on granting permissions
without even consulting AICTE. Such exercise on part of DEC
was completely without jurisdiction.
The said order, the Court noted, had definitively vested the UGC
and AICTE, among other statutory regulators, with powers to regulate
technical courses imparted through distance learning mode and made it
mandatory for institutions intending to impart such courses to seek their
approval and recognition, observing as under:
“[T]he Central Government in exercise of the powers conferred
by sub-section 1 of section 20 of the UGC 1956 and the AICTE
Act, 1987 hereby directs: -
The UGC and AICTE as already empowered under their
respective Acts, would also act as a regulator for Higher Education
(excluding Technical Education) and Technical Education through
open & Distance Learning (ODL) mode respectively Universities
are empowered under their respective Act to offer any programme
course including in Technical Education in the conventional mode.
However, if they offer any programme/course in ODL mode they
would require recognition from the UGC, AICTE, NCTE and other
such regulators of the conventional mode of education in those
areas of study .”
28. In view of the aforesaid discussion, we do not find any merit
in the present Writ Petition and the same is dismissed. However, in the
facts of the case, there would be no order as to costs.
Nidhi Jain Writ petition dismissed.
VINIT GARG AND OTHERS v. UNIVERSITY GRANTS
COMMISSION AND OTHERS [SANJIV KHANNA, J.]