Private Institutions cannot become “commercial shops” and charge exorbitant fees in name of building fund, infrastructure fund: HC

……… The private institutions cannot be permitted to operate like money minting institutions.

……. Over a period of time, education has become a commodity in India. All the genres of society are so overly obsessed with education that it has devalued the real essence of education. Education is no more a noble cause but it has become a business, therefore, the paradigm shift, especially in the higher education from service to business is a matter of concern. The commercialization of education has a dreadful effect that is so subtle that it often goes unnoticed.

 …… Educational Institutions are indulging in gross misleading advertisements. which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience.

 …….. It is shocking that the private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time these practices are stopped forthwith and there is a crack down on all these institutions.

…… Himachal Pradesh High Court

The Himachal Pradesh taking serious cognizance of ill practices of certain educational institution to conduct in unauthorized manner, collecting exorbitant fees and issuing misleading advertisement has directed State Government to set up a Committee to investigate all the Institutions and further directed State Government to ensure that no fees is charged in name of building fund, development fund, infrastructure fund etc.

The Judgement was passed on a petition directed against the order passed in against the Petitioner Institutions to jointly and severally refund the fees taken from the students.

The petitioner is the so called franchisee of the Sikkim Manipal University based at Sikkim and claims to be running its study centre at Shimla. The students had filed petition under Section 11 of the H.P. Private Educational Institutions (Regulatory Commission), Act, 2010 claiming refund of admission fee paid to the petitioner for MBA PGDM course, on the ground that the same was exorbitant and had never been approved either by the State Government or by the UGC. These petitions were contested by the petitioner and vide impugned order, the petitioner was directed to refund the fee.

The order was challenged on the ground that the Education Commission had no jurisdiction to entertain the petition, as the dispute relating to Sikkim Manipal University was beyond its territorial jurisdiction

The Court considered the finding that neither the petitioner Institute had permission by the UGC to run the institute as a distance education programme study centre nor it had  obtained permission from the State Government and thus observed that the petitioner was concerned only with minting money and was least concerned with the prospects and future of the students. It also observed that “Education institution of the petitioner is no less than a commercial shop, where the aspiring needs of the students stand defeated due to the malpractices and frivolous activities of the petitioner. This is a classical example where the petitioner institute has presented an imaginary and illusory picture for making a successful career to the innocent students admitted in their institute, that too, by charging exorbitant fees and thereafter leaving them in the lurch to fend for themselves little knowing that even the courses undertaken by them may probably not even be recognized in the country. This practice is not only to be deprecated, but is also to be handled and dealt with a heavy hand.”

The Court considering various, guidelines and notification relating to territorial restrictions of a State Private University came to the conclusion that the petitioner could not act as a franchisee of the Sikkim Manipal University and dismissed the Petition.

However before it parted with the Judgement, it made certain important observations, regarding practice of educational institutions to issue misleading advertisements, charge exorbitant fees in different names, commercialization of education etc.:

  1. The private institutions cannot be permitted to operate like money minting institutions.

  2. Imparting education can never be equated with profit oriented business as it is neither commerce nor business and if it is so, then the regulatory controls by those at the helm of affairs have not only to be continued, but are also required to be strengthened.

  3. Over a period of time, education has become a commodity in India. All the genres of society are so overly obsessed with education that it has devalued the real essence of education. Education is no more a noble cause but it has become a business, therefore, the paradigm shift, especially in the higher education from service to business is a matter of concern. The commercialization of education has a dreadful effect that is so subtle that it often goes unnoticed.
  1. Mushroom growth of ill-equipped, understaffed and unrecognized educational institutions was noticed by the Hon’ble Supreme Court and it was observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements.
  1. Educational Institutions are indulging in gross misleading advertisements. which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience. These institutes trap into their web the innocent, vulnerable and unsuspecting students. Their lucrative and mesmerizing advertisements hypnotize the students only to fall into an unknown world of uncertainties. Some institutes promise hundred percent placement, some claim excellent staff, some claim free wi-fi campus, some promise free transportation etc. But what should really matter is ‘education’. This problem is further compounded by the proliferation of coaching institutes which have only made ‘education’ more dirty and murkier.
  1. It is shocking that the private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time these practices are stopped forthwith and there is a crack down on all these institutions. Every education institution is accountable and no one, therefore, is above the law. It is not to suggest that the private education institutions are not entitled to their due share of autonomy as well as profit, but then it is out of this profit that the private education institutions, including schools are required to create their own assets and other infrastructure. They cannot under the garb of building fund etc. illegally generate funds for their “business expansion” and create “business empires”.

The Court in light of all these observations felt that there is an urgent need for Government intervention by conducting a fresh investigation of all these institutions and directed the Chief Secretary to Government of Himachal Pradesh is directed to constitute a committee which shall carry out inspection of all the private education institutions at all levels i.e. schools, colleges, coaching centres, extension centres, (called by whatever name), universities etc. throughout the State of Himachal Pradesh regarding requisite infrastructure, parents teacher associations, qualified staff and submit report regarding compliance of the H.P. Private Educational Institutions (Regulation) Act, 1997 within three months.

The Court directed the State Government to ensure that no private education institution is allowed to charge fee towards building fund, infrastructure fund, development fund etc.

In addition to this, the Principal Secretary (Education) is directed to issue mandatory orders to all educational institutions, whether private or government owned, to display the following detailed information relating to faculty, infrastructure, fees breakup, details of internship and placement, on the notice board which shall be placed at the entrance of the campus and on their websites.

EduLegaL View:

Commercialization of education is certainly a serious issue. It is opposed to public policy and Indian tradition. Education has never been commerce in this country. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture.

To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.

Appropriate machinery can be devised by the state or university to ensure that exorbitant fee is not charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.

But nonetheless, after these borderlines have been drawn in plethora of judgements, the issue remaining a burning issue !

Ravi Bhardwaj | mail@edulegal.in

 

HC directs all Universities to evolve mechanism to decide eligibility at the beginning of academic year

” ……  A provisional admission does not create any vested right in the students. A provisional admission is a concession, which is granted to a student and the same cannot be elevated to a position of a creating a vested legal right. … ” 

“……… We therefore direct the State Government and the respective Universities in the State of Maharashtra to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible….”

The Bombay High Court, while being pained to see students-institutions wasting time in litigation in Court, has directed all the Universities in the State to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible.

The Petitioner in question could clear her backlog of the first year (IInd Semester- Applied Mathematics) subject, only in November, 2015 and before passing the same was granted admission to the Third year (Vth and VIth semester) which was wholly impermissible. The College and the University, for these reasons refused to allow the petitioner to appear for the viva- voce examination of the VIth semester which is to be held on 18th April,2016 and her form was not accepted.

The Petitioner then approached the Court seeking direction to allow the Petitioner to appear for the Viva Voce examinations and the written examinations for the sixth semester and continuation of studies in the seventh and thereafter in the eight semester in the engineering course in the Information Technology faculty.

The Court declined to entertain the petition relying on a rule that a candidate to be eligible to obtain an admission for the Third Year (V & VI semester) should have passed Semester I and II examination and when the Petitioner approached for admission to third year (V and VI semester) in the Academic Year 2014- 15 and was given provisional admission had not cleared the IInd semester examination namely the subject ‘Applied Mathematics’ in which she had failed and hence the Petitioner was not eligible for admission to Third Year.

The Court also ruled that a provisional admission does not create any vested right in the students. The Court also observed that a provisional admission is a concession, which is granted to a student and the same cannot be elevated to a position of a creating a vested legal right. The Petitioner in the present case was given provisional admission and hence she could have claimed any vested right.

Before concluding the Judgement, the Court made following observations:

“ We would be failing in our duty if we do not sound a note of caution in such cases which would be in the interest of the institutions and the students. We are at pains to see number of such cases coming to the court at the fag end when the examination is about to commence. This is routinely happening. Many times it is seen that the institution is at fault for not scrupulously enforcing norms of the University in respect of matters which the University would want the institution to do. The students also many times being aware of the rules try to exploit the situation and try to create equities, and then approach the court at the fag end. In all these situations the students may ultimately suffer huge loss in terms of their academic career. Such situations which are not conducive to anyone are required to avoided. All mischief’s if any at which ever level are required to arrested and remedied at the threshold. This would result in maintaining of academic standards. It is least expected that the students and the institutions waste their time in litigation in Courts. We therefore direct the State Government and the respective Universities in the State of Maharashtra to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible. If the institutions and colleges are guilty of making such admissions/ when are against the rules stern action should be taken against such colleges which would be deterrent to these colleges to deviate from the binding academic rules.”

Thus the Court has directed all the Universities in the State of Maharashtra including Deemed Universities to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible. The Court has also warned the Institutions and has cautioned that if the institutions and colleges are guilty of making such admissions/ when are against the rules stern action should be taken against such colleges which would be deterrent to these colleges to deviate from the binding academic rules.

EduLegaL View

 There is no doubt that in spirit, this Judgement is very good and will help in maintaining academic and administrative discipline. However, it is also important to note that considering the diversity of this country and different timings and processes all over the Country, it is almost impossible to determine eligibility at the time of admission.

There are many situations, when essential documents required for eligibility like Migration Certificate, verification of caste certificate, equivalence of a foreign degree from AIU consumes time. Additionally, the Institutions are also working a huge volume. In some case, even results of compartment / improvements are also declared and hence with utmost respect to the Judgement, such blanket process and deadline cannot be laid down.

Yes, I agree that this should certainly happen before the commencement of the second year, so that a student does not waste his time, as has also been observed by the Court.

However, this Judgement certainly gives me a thought and if it has to become a reality, we should have UNIFORM ACADEMIC CODE in the Country, when all the examinations start on same and results are declared on the same date throughout the country.

UNIFORM ACADEMIC CODE ! Another debate in making !

Ravi Bhardwaj | mail@edulegal.in

 

 

 

SC issues Notice to Deemed Universities on Transfer Petition by MHRD relating to Deemed University Regulations, 2010

 

Supreme Court has issued Notice to Deemed Universities on a Transfer Petition filed by MHRD relating to transfer of Appeal filed by MHRD challenging the judgement passed by Karnataka High Court dated 22.05.2014, which quashed the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 as ultravires to UGC Act, 1956 and Constitution of India.

University Grants Commission in the year 2010, has notified University Grants Commission (Institutions Deemed to be Universities) Regulation 2010. The Deemed Universities felt that the Regulations interfered with the autonomy of the Institutions. The Regulations also in their view placed unreasonable restriction on rules relating to governance, admission, fee structure etc. Therefore, several Deemed Universities had challenged the provisions of the University Grants Commission (Institutions Deemed to be Universities) Regulations, 2010 in different High Courts in India.

Tamilnadu

The Deemed Universities based in Tamilnadu made the first challenge. Though initially STATUS-QUO was granted in the matter, but later by a detailed Judgement, the challenge by Deemed Universities based in Tamilnadu was over ruled and the legality and validity of University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 was upheld. The Deemed Universities in Tamilnadu later challenged the Judgement pronounced by Single Judge before Division Bench. The matter is pending for determination before the Division Bench, however the Court has ordered that STATUS QUO will be maintained.

Karnataka

Following the suit, certain Deemed Universities in Karnataka also challenged the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 in Karnataka High Court. In some of the Petition there, stay was granted on the Regulations and some the Court was pleased to order STATUS QUO in favour of the Petitioner as against UGC and MHRD. Later vide detailed Judgement dated 22.05.2014 the Hon’ble Court declared University Grants Commission (Institutions Deemed to be Universities) Regulation 2010, was declared to be invalid and unconstitutional. UGC and MHRD have both filed appeals independently against the Judgement before Division Bench.

Punjab

One of the challenge was also filed before Punjab & Haryana High Court. The matter is pending consideration before the Hon’ble Court. Interim Order staying the Regulations have been passed.

Maharashtra [Aurangabad Bench]

Some of the Deemed Universities based in Maharashtra have also challenged the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010. Though as understood, no Interim Order has been passed in the matter.

Matter Sub-Judice- but UGC keeps amending these Regulations

While Interim Stay is prevailing in one High Court and another High Court has quashed the Regulations, UGC continued to amend the Regulations from time to time, which raised a critical issue as to, did UGC had the legal competency to amend the Regulations, while Courts in India hearing cases relating to challenge and Interim Order restraining UGC from enforcing the Regulations were prevailing and the Regulations were quashed.

Transfer Petition in Supreme Court

MHRD has now filed Transfer Petitions before the Hon’ble Supreme Court of India in Transfer Petition (Civil) Nos. 1555-1561 of 2014 seeking transfer of the cases relating to challenge to University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 before Hon’ble Supreme Court of India. The Transfer Petition were called before the Hon’ble Supreme Court on 11.11.2014. The Supreme Court adjourned these matter on request of the Government to 18.11.2014. The matter was not listed thereafter for so many months.

Eventually, vide order dated 26.02.2014 and 29.03.2014 has issued notice on the Transfer Petition filed by MHRD. The notice is returnable in four weeks. The matter may now be listed on 29.04.2016.

EduLegaL View

University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 applies to all the Deemed Universities. Different High Courts in India took different view of the Regulations resulting in conflict as regards its validity and applicability, as one High Court said it is valid and another said it is invalid.

It is appropriate that considering the universal applicability of the Regulations, the Highest Court of the country rules on its validity and legality, so that issue is settled once and for all.

But again MHRD has take half-effort. It has filed transfer petition in respect of Petitions filed in Karnataka only and not in respect of petitions filed in other High Courts. This will again leave vacuum in the Regulatory Regime.

But till then, the arguments will continue !!!!

Ravi Bhardwaj | mail@edulegal.in

Making a student to re-appear for all papers, for failing in one subject, to pass the course is arbitrary and unconstitutional: HC

“ …… what is the purpose in requiring the candidate to write all the four theory papers again if he has failed in one practical or undergo Clinical/Practical tests again for all the subjects if he has failed in one theory paper? Repetitive undertaking of examinations after having secured the minimum prescribed does not scale up the standard and can only be termed as oppressive from the point of view of the student.”

…. Kerala High Court

The Kerala High Court in a landmark Judgement while setting aside a Kerala University of Health Sciences Regulations has held that making a student to re-appear in all the papers to pass a course, just because he has failed in a single paper in first attempt or thereafter in arbitrary, unconstitutional and violative of Article 14 of Constitution of India.

kerala high court

The case involved Post-graduate medical students who have failed, either because they did not secure the minimum in one of the four theory papers or in one of the clinical/practical tests and were made to re-appear in all the papers to pass the course. The petitioners have not been declared successful in the Post-graduate Medical Course for the reason that they have failed to secure the minimum for the theory and the practical in all the subjects simultaneously.

The petitioners contended that they should be permitted to appear for the theory or the clinical/practical (in which they have failed) without insisting on the appearance for all the papers and practical again. They also argued that such insistence is violative of Constitution of India and does not serve any purpose. It was also their argument that such practice has no nexus with maintaining the standards of education.

Kerala University of Health Sciences in response contended that the candidates cannot pass the examinations piece-meal. The right of the University to prescribe stricter conditions for a Post- graduate medical student to be declared passed is emphasised stating that it is only a step for raising the level of standard. The University adds that its autonomy to fix higher standards in order to declare a candidate as having passed the Post-graduate medical examination cannot be interfered with in exercise of the writ jurisdiction.

KUHS

The rule under challenge was Clause 3.16. of KUHS Regulations of Post- graduate Medical Courses which prescribes that a candidate who has secured minimum of 50 percent marks for theory (40 percent separate minimum for each paper), 50 percent for Clinical/Practical including oral shall be declared to have passed in that subject. A candidate who fails in one subject either theory/practical shall have to appear for all the papers including theory and practical.

It was however, noted by the Court that in the corresponding clause in the MCI Regulations there is no insistence that the candidate who has failed in one subject either theory or practical should again appear for all the papers including theory and practical in the MCI Regulations as in the KUHS Regulations. Even in the Affidavit filed by Medical Council of India there was conspicuous silence as to whether the MCI Regulations insist on a simultaneous pass in the theory and practical.

The Judge however noted the contradiction in the two rules and felt that one cannot lose sight of the fact that a candidate could be declared as ‘passed’ if the MCI Regulations are adopted and at the same time declared as ‘failed’ if the KUHS Regulations are adopted.

After examining all the Rules and hearing the arguments of the parties, the Hon’ble Court while deprecating the practice of re-appearing in all the papers to pass, because he failed in one subject in first attempt, held that:

One can understand if the candidate is required to appear again in the theory and related practical of the particular paper if he has failed to secure the minimum prescribed in that subject as per the norms. But what is the purpose in requiring the candidate to write all the four theory papers again if he has failed in one practical or undergo Clinical/Practical tests again for all the subjects if he has failed in one theory paper? Repetitive undertaking of examinations after having secured the minimum prescribed does not scale up the standard and can only be termed as oppressive from the point of view of the student. The repetitive appearance in examinations under the KUHS Regulations has no rationale nexus with the object sought to be achieved and is obviously violative of Article 14 of the Constitution of India.

The mental anguish which a student has to face in the event of his losing a theory or practical by marginal marks necessitating re-appearance for all the papers in theory and practical in order to secure a pass is unimaginable. It is possible that a candidate who has passed in the first attempt may fail in the same examination in the second attempt and the vicious circle of pass and fail will only result in unfairness to the extreme.

The High Court eventually held that Clause 3.16 of the KUHS Regulations to the extent it insists that ‘a candidate who fails in one subject either theory/practical shall have to appear for all the papers including theory and practical’ is unreasonable and arbitrary.

mci

It however, also asked Medical Council of India to clarify as to whether each candidate should simultaneously pass the theory and practical securing 50 percent marks in each which can be incorporated in the KUHS Regulations appropriately.

EduLegaL View:

“Arbitrariness” is generally tested on touchstone of the parameters of Article 14 of Constitution of India. It also includes in itself a principle that a law / rule should have reasonable nexus [connection] to the object of the law / rule.

In our view, making a student re-appear for the entire paper to achieve the academic award, merely because he has failed in one of the papers does not achieve any object of high standard of education. Such practice is not only unconstitutional but also regressive and oppressive. It is legalized exploitation. In this throat cutting edge of competition, liberalization should be the guiding factor for the regulators.

If a student is asked to re-appear in all the papers, will it increase the standards, the answer is big NO. Then why have such rule.

Just imagine the agony of a student, he has to undergo all the papers again, read the same material all over again, which may enhance his application skills but only create a culture of “repetitiveness” or “ratta” [as they call in Hindi]. This will create bookworms than sharp professionals.

Ravi Bhardwaj | mail@edulegal.in

Karnataka State’s attempt to regulate entrance test, admission process of Deemed Universities, halted by High Court

Government of Karnataka, while amending the Karnataka Professional Education Regulation (Regulation of Admissions and Determination of Fee) Act of 2006, vide Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) (Amendment) Act, 2015 made an attempt to interfere and regulate the admission and entrance test procedure of the Deemed Universities.

The amended sections Section 2(ff) included the definition of deemed-to-be-universities treating them at par with private and professional colleges in the State and Section 4B, apart from specifying methods of admission, also mandates constitution of an association for conduct of common entrance test besides directing for 25 per cent seats to be filled by CET conducted by the state government and quota for the State Government.

Some of the Deemed Universities based in Karnataka approached Karnataka High Court and challenged the action of the State Government. It was contended by the Universities that Deemed Universities having come into existence by Notification issued by the Central Government under a Central Statute, cannot be restricted by State Government by imposing rules regulating their entrance procedure and admission process. It was also argued that these regulations are against the law settled by the Supreme Court and also ultravires to the Constitution of India. It was also contended that the amendments breaches the academic and operational autonomy of the Institutions.

A vacation bench of Justice Anand Byrareddy and Justice P S Dinesh Kumar on hearing the Deemed Universities by way of an Interim Order permitted the Deemed Universities to publish their own calendar of events and conduct their own entrance tests for post-graduate and under-graduate courses to select candidates for admission to professional courses offered by them.

 

EduLegaL View:

This time for an exception, instead of having my own view, I choose the echo the observations of the Supreme Court in the famous TMA Pai’s Foundation Case:

  1. Private education is one of the most dynamic and fastest growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of government to provide the necessary support has brought private higher education to the forefront…….
  1. The right to establish and administer broadly comprises of the following rights:-

 (a) to admit students:

 (b) to set up a reasonable fee structure:

 (c) to constitute a governing body;

 (d) to appoint staff (teaching and non-teaching); and

 (e) to take action if there is dereliction of duty on the part of any employees.

  1. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.
  1. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.

I therefore rest my case !

Ravi Bhardwaj | mail@edulegal.in

UGC’s Order to close alleged unauthorized Campus to BITS Pilani stayed by High Court

The Delhi High Court has stayed the Order / Notice issued by UGC to BITS, Pilani to close its Goa and Hyderabad Campus, issued allegedly on the ground that these campuses have not been approved by UGC / MHRD and the campus are being in run in violation of UGC Guidelines of 2000, UGC Guidelines of 2004 and UGC Regulations of 2010.

On November 9, 2015, UGC, Higher Education Regulatory Authority in the Country had issued Notices to 10 Deemed Universities directing them to close down their off-campus, which have not been permitted / approved by UGC / MHRD.

The Institutes, which received notices were Tata Institute of Fundamental Research, Homi Bhabha National Institute, Narsee Monjee Institute of Management Studies University, BITS, Pilani, Indian School of Mines-Dhanbad, Banasthali University (Rajasthan), Ponnaiyah Ramajayam Institute of Science & Technology, Indian Veterinary Research Institute (UP) and Lakshmibai National University of Physical Education-Gwalior.

The Notice has created furor in the academic circles as it involved career of many students pursuing their education and several of those who have graduated. All the concerned Deemed Universities protested the Notice and also met the concerned officials and expressed their grievance.

However, BITS Pilani went on aggressive pitch and filed a Petition challenging the closure order before the Hon’ble Delhi High Court. While seeking setting aside of the Order dated 09.11.2015, BITS, Pilani had also sought stay on the Notice. Shri Harish Salve, Sr. Adv., was leading the arguing team in the High Court.

The matter came up before the Bench of the Hon’ble Chief Justice and Hon’ble Justice Jayant Nath on 22.12.2015. Interestingly, there was no representation from UGC, the principal Respondent in the matter.

The Hon’ble High Court after hearing Mr. Salve, issued Notice to UCG returnable on 09.02.2016 and passed the following order:

“Issue notice to the respondent returnable by 09.02.2016.

 Pending further orders, no coercive steps shall be taken pursuant to the impugned notice dated 09.11.2015.”

 The order of “no coercive steps shall be taken” basically means that the operation and implementation of UGC’s Order dated 09.11.2015, of closure of Off-Campus shall not come into effect and will be treated as stayed.

Interestingly, few weeks back, Delhi High Court in another matter relating to a Deemed University had observed that UGC Guidelines of 2000 and UGC Guidelines of 2004 are ultravires the UGC Act, 1956 and had held that prior to 2010, i.e., before passing of the Regulations, a Deemed University did not require prior approval of UGC to start new Department / Programme.

EduLegaL View:

The action or rather ill-action of UGC was completely an ill-prepared action. After having given Deemed University/s “legitimate expectation” by not taking any action when they had full knowledge of existence of Off-Campus/es, UGC was disabled by principle of “promissory estoppel” from taking any action against the Deemed Universities much less abrupt closure of the running Institutions at the Off-Campus/es. But wisdom was not on their side and they took hasty decision.

The fate of the unfortunate order was known from the time it was issued and it has turned out to be as expected.

Ravi Bhardwaj

Founder & Principal Consultant

EduLegaL | mail@edulegal.in

 

RTE Act does not guarantee admission to school of choice: HC

Himachal Pradesh High Court while answering a question, “Whether children through their parents have unfettered right to choose a school, in which they wish to study?” has held that free and compulsory education in a neighbourhood school as guaranteed under the RTE Act does not mean that a child has unfettered right to admission in the school of one’s choice.

In this case, the petitioner father had approached Respondent school for admitting his younger child in class 3, but was denied the admission on the ground that the child did not make a grade and therefore, could not be selected. It was claimed that Respondent school is hardly at a distance of 75 meters from his residence and as per the Right of Children to Free and Compulsory Education Act, 2009, his child has an unfettered right to be admitted in the school and the respondents have no discretion whatsoever to deny him admission.

The respondent-School contested the Petition and stated that it is a non-aided school and that the admissions made by it are strictly in conformity with the Act. It is further averred that the son of the petitioner had competed with the other children who were desirous of being admitted in class 3, but failed to make a grade and therefore, could not granted admission.

Himachal-Pradesh-High-Court.jpg

The High Court of Himachal Pradesh considered the argument of the parties and disposed off the Writ Petition by observing that Section 3(i) of the Act provides that every child of the age of six to fourteen years shall have right to free and compulsory education in a neighborhood school till completion of elementary education ensuring that a school is available in the neighborhood and free and compulsory education in neighborhood school is available to every child of the age group to which statute applies, but then this provision, in no manner gives a right to the child or parents to pick and choose a particular school, which falls under Section 12 of the Act, except to the extent of the provisions contained in this Section read with Section 2(n) of the Act.

The Court was also of the view that any direction to admit the student belonging to non-minority, then the same would lead to an invasion of its right guaranteed under Article 19(1)(g) of the Constitution to the Schools.

The High Court was clear to observe that school’s responsibility for free and compulsory education is governed by Section 12 of the Act and sub-section 1(c) thereof provides the extent to which provisions have to be made in favour of the weaker section, disadvantaged group etc., but right to free and compulsory education in a neighborhood school does not include the right to insist on any school of choice under the Act. The High Court accordingly dismissed the Petition.