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

 

 

 

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

Supreme Court disallows revealing the name of examiner of answer sheets, says will create confusion, and unrest

The Apex while over-ruling a judgement of Kerala High Court has held that names of examiners of answer sheet cannot be disclosed under Right to Information Act, 2005.

Supreme Court was examining the issue,  whether  a student / candidate is entitled not only to get information with regard to the scan copies of his answer sheet, tabulation-sheet containing interview marks but is also entitled to know the names of the examiners who have evaluated the answer sheet.

Before dealing elaborately into the aspect of disclosure of name of examiner, the Court upheld that supply of scanned copies of answer-sheet of the written test, copy of the tabulation sheet and other information are rights of a candidate and should be provided by the public authority, as this will ensure a fair play in this competitive environment, where candidate puts his time in preparing for the competitive exams

However, Supreme Court did not concur with the findings of the High Court that an examining body is also bound to disclose the name of the examiner. The Supreme Court felt that disclosure of the identity of Examiners is in the least interest of the general public and also any attempt to reveal the examiner’s identity will give rise to dire consequences and will lead confusion and public unrest.

The Supreme Court, while concluding the judgement, observed as follows:

“The Commission has reposed trust on the examiners that they will check the exam papers with utmost care, honesty and impartially and, similarly, the Examiners have faith that 7 they will not be facing any unfortunate consequences for doing their job properly. If we allow disclosing name of the examiners in every exam, the unsuccessful candidates may try to take revenge from the examiners for doing their job properly. This may, further, create a situation where the potential candidates in the next similar exam, especially in the same state or in the same level will try to contact the disclosed examiners for any potential gain by illegal means in the potential exam.”

Supreme relied on principle of fiduciary relationship and held that relationship between the between the examining body and the examiner is fiduciary in nature which required to be protected and therefore any information shared between them is not liable to be disclosed.

EduLegaL View:

I agree with the Judgement of Supreme Court and at the same time I also feel that the fundamental right to transparency should not aim to make everything so transparent that it endangers the fundamental right of some other person. Every fundamental right has reasonable restriction and cannot be absolute.

It is of utmost importance that name of examiner is not disclosed, so that he exercises his competency in fearless atmosphere. In any case, the fact that an answer sheet is available to a student, he can always seek correction in his answer on sound principles without knowing the name of the examiner.

Good ! Great !

Ravi Bhardwaj | mail@edulegal.in

Information Panel puts ceiling to cost for seeking copies of answer sheet only at a cost of Rs 2 per page, censors practice of charging exhorbitant fees

In a major relief to the students, the Central Information Commission has directed all the Universities in India, including deemed Universities and all examining bodies to provide copies of answer sheet only at a cost of Rs 2 per page. It has also directed UGC and Association of Indian Universities, to circulate, publicize and insist on implementation of the rule in all academic/examining bodies. It has also directed MHRD to circulate this order to all examining bodies including Universities and make it mandatory for them to bring uniformity in the rules and regulations by fixing cost at not more than Rs 2 per page of answer sheet.

CIC was examining the rule of Delhi University, which prescribed Rs. 750/- per application for seeking copy of the Answer Sheet. CIC has not only prescribed this ceiling, at the same time it has held that rules prescribing a student to pay exorbitant fees for seeking copy of answer sheets are in violation of Right to Information Law and must be changed to allow a student to exercise his Right to Information.

CIC gave this ruling while hearing a Complaint / Appeal regarding constraints including huge fees being charged for providing certified copy of evaluated answer sheet. The aggrieved student was questioning the regulation of Delhi University alleging that it enables University to impose unreasonable time­ frames and cost constraints on their right to secure copy of answer­sheet. CIC also ruled that such rules are against the law settled by Supreme Court of India.

Section 7 of RTI Act says: “…provide the information on payment of such fee as may be prescribed…” Section 7(2)(a) says that the PIO has to ‘give details of further fees representing cost of providing the information as determined by him together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section(1) requesting him to deposit that fees….”. As per Section 7(2)(b), the PIO has to inform the applicant “concerning his right with respect to review the decision as to the amount of fee charged or the form of access provided…”. Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules 2005, framed by the Central Government mandates the following rates, (a) rupees two for each page or actual cost in case of larger size paper.

CIC relied on Judgements of the Supreme Court in case of CBSE v Aditya Bandopadhyay and ICAI v. Shaunak Satya, which has held that evaluated answer-book is an ‘information’ under the RTI Act and cannot be under any exemption prescribed under RTI Act.

CIC also relied on the Judgement of Rajasthan High Court in relation to the exorbitant fee charged by a University to extent of Rs 1000 for copy of answer sheets, which had held that charging of exorbitant fees of Rs.1,000/- for the purpose of providing copy of answer-book to a student by the respondent-University is in violation of object and purpose of the Act of 2005 and is an ill-intended attempt on the part of the University to discourage the students from seeking certified copies of their answer-books.

CIC felt that imposing time and cost constraints over and above the norms prescribed by RTI Act and Rules and charging Rs 750 per paper, which far more than Rs 2 for copy per page (as prescribed) will impose economic burden on a student, who has paid an examination fee to meet the expenditure to conduct examination including the cost of evaluation. This is a huge amount over and above the fee collected, for recounting and re­evaluation. CIC also felt that charging so high a fee/cost will not only deny the accessibility, but also immunize the public authority from being accountable to students. The resultant situation is: If a student cannot pay Rs 750, the Delhi University will become not accountable for its evaluation! This is against objective and scheme of RTI Act.

answer sheet.jpg

 

It finally held that that “prescribing unreasonable cost and time constraint will in fact amount to complete denial of information to the students on grounds of their economic status, which is in violation of Article 14, 15 and 16 of the Constitution of India. No citizen shall be discriminated on the basis of his access to resources or any criteria including poverty as per his fundamental report to equality. It is very sad that educational institution like university is not mindful of the basic fact and they are going on denying information to the students, by imposing high cost, which means if you cannot afford, you cannot access. Thus, charging of Rs 750 per answer sheet will amount to breach of sections 3, 6 and 7 of the RTI Act.”

 It thus held that high cost of Rs 750 per paper for securing copy of answer­sheet and time conditions that a student has to approach only after 61 days and before 75 days after result declared will unreasonably restrict the right to access to his own answer book and breakup of marks awarded.

EduLegaL View

There are two concepts of law “substantive” and “procedural”. While RTI Act, 2005 guarantees “Right to Information” to an Indian Citizen, which is substantive law. Rules made by Public Authorities prescribing the condition for implementation of this “substantive law” is part of “procedural law”.

Public Authorities by way of delegated legislation cannot frame a “procedural law” by which exercise of “substantive law” becomes difficult or impossible. The “procedural law” has to aid the “substantive law”.

Making RTI Rules, to make it difficult for a student to exercise his Right to Information is infringement of liberty of students to get a photocopy of answer script and their right to access the information. The rules cannot prescribe unreasonable time and cost constraints, as “Right to access the Information” is inherent in “Right to Information”.

Read the Full Judgement.

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

 

Deemed Universities are state / public authority, within the meaning of Article 12 of Constitution of India: Supreme Court

The Supreme Court while deciding the issue of maintainability of a Writ Petition against a Deemed University has held that a Deemed University being created / established for imparting education, which is an important public function, therefore it comes within the ambit of Article 12 of Constitution of India and hence amenable to Writ Jurisdiction of High Court / Supreme Court.

The case relates to a Faculty of a Deemed University, who was terminated after disciplinary proceedings. She successfully challenged the termination before the Single Judge in Madras High Court and her termination was set aside. The University then challenged the order of the Single Judge in Appeal. The Division Bench set aside the order and held that a Deemed University is neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution to examine the legality and correctness of the dismissal order.

Aggrieved by the said judgment, the Faculty challenged the Judgement in Supreme Court.

As significant legal issue was involved in the matter and the aggrieved faculty had no legal assistance, the Court requested Mr. Harish Salve, Senior counsel, to assist the Court to enable us to properly appreciate and decide the issues arising in the case.

Shri Salve submitted to the Court the test as to whether any person/body/organization/authority, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution, can be done asking as whether the concerned body has been formed for discharging any “Public function” or “Public duty” and if so, whether it is actually engaged in any public function or/and performing any such duty.

He also submitted that in the light of several judgements “imparting education to students at large” is a “public function” and, therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction.

The Supreme Court agreed with submission of Shri Harish Salve and ruled that Respondent Deemed University can be subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution, for following reasons:

[A] Firstly, Respondent Deemed University is engaged in imparting education in higher studies to students at large.

[B] Secondly, it is discharging “public function” by way of imparting education.

[C] Thirdly, it is notified as a “Deemed University” by the Central Government under Section 3 of the UGC Act.

[D] Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to Respondent University, which inter alia provides for effective discharge of the public function – namely education for the benefit of public.

[E] Fifthly, once Respondent University is declared as “Deemed University” whose all functions and activities are governed by the UGC Act, alike other universities then it is an “authority” within the meaning of Article 12 of the Constitution.

The Court thus observed that once a Deemed University is held to be an “authority” as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.

The Supreme Court thus set aside the Judgement of Division Bench of High Court and remanded the matter to the Division of the High Court to decide the respondent’s appeal on merits on the question as to whether the Single Judge was justified in allowing the writ petition on merits.

EduLegaL View

There is a legal distinction between “authority” under Article 12 and Article 226. A Statute does not create a Deemed University; rather it is created under a Statute. There is a well-marked distinction between a body, which is created by the statute and a body, which is given a legal status under a Statute.

A Deemed University, only because it has been brought into existence by virtue of notification u/s 3 of UGC Act, 1956 and UGC Act, 1956 and its functions are regulated by  UGC, it does not become “authority” for the purpose of Article 12. The test under “Article 12” is much higher than “Article 226”.

When a law provides that something shall be deemed to exist, the court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. The legal fiction of “Deemed University” was created for the purpose of making the provisions of the UGC Act, 1956 to the Institution enabling it to conduct courses and impart degrees and nothing beyond that.

Public function and Public Duty test may be adequate for bringing a Deemed University within the ambit of Article 226 but that cannot be true for Article 12 as well.

Now that SUPREME COURT has settled an issue, the Argument can continue!

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.

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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.

 

 

 

 

 

HC says Deemed Universities are at par with Statutory Universities, overrules UGC Guidelines restricting starting new campus and programmes, restricts UGC from disturbing pre-2010 status

In a landmark Judgement, Delhi High Court has ruled that Deemed Universities though established by a Notification u/s 3 of the UGC Act, 1956 is to be treated at par with other Universities which are established statutes of Central / State Government.

The High Court has also held that UGC Act, 1956 does not bar a deemed university from commencing any new course / programme of study or from establishing any new department i.e. other than the one in which a deemed university is already imparting education at the time of being notified as a deemed university, to confer degrees specified in Notifications under Section 22(3).

The High Court was hearing a challenge by a Deemed University to communication by UGC that it had never granted any permission / approval to the University to start certain Departments and that as per the UGC norms a deemed university can on its own start only those courses which are allied to courses already approved by the UGC and that for all those courses which are not allied to the courses already approved with prior approval of UGC is required. UGC had also directed the University not to admit students.

It was argued by the University that there is no provision in the University Grants Commission Act, 1956 which requires an institution, once conferred the status of deemed University, to seek prior approval of the UGC for starting a course / programme. It was also argued that neither the 1992 Guidelines nor the 2000 Guidelines formulated by the UGC for declaring an institution as deemed university also included any provision / condition requiring deemed university to obtain prior approval to start Programmes / Courses / Departments.

UGC contended that 2000 Guidelines required deemed universities to submit proposals for starting various academic courses. Similarly 2004 Guidelines “for establishing of new departments within the Campus, setting up of Off-Campus Center(s) / Institution(s) / Off- shore Campus and starting Distance Education Programmes by the Deemed Universities” also provided inter alia that the deemed universities intending to open a new department in its campus or an Off-Campus Centre / Institution shall approach the UGC at least six months prior to opening of such center and that the deemed universities desirous of introducing a new Course / Programme in a professional subject shall comply with all the requirements of the Statutory Professional Councils and obtain their approval before approaching UGC.

It was emphatically submitted that UGC is empowered by Section 12(j) of the Act to perform such other functions as may be prescribed or as may be deemed necessary for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of its functions and in exercise of which powers, had issued the Guidelines aforesaid. UGC also said that it is entitled to treat deemed Universities as a separate and distinct class and to require them to seek prior approval before starting new Courses/Departments, because deemed Universities are fundamentally different from Universities; while a University is established under a Central or a State Act and does not require recommendations of the UGC, a deemed University is not so established and requires recommendation of the University to function as a University.

The Hon’ble Court rejected the contention of UGC, that Section 22 prohibits deemed Universities from setting up a new department or commencing a new course or programme and held that once an institution of higher education has been declared as a deemed University, it can confer the degrees specified in the notifications issued in exercise of power under Section 22(3) and the said Section cannot be read as restricting the right of a deemed University to confer degrees only in those courses/programmes in which it was imparting education in at the time of being declared a University.

The Court also categorically observed that UGC Act, 1956 does not contain any distinction between a university established or incorporated by a Central Act, a Provincial Act or a State Act and a deemed university. Rather, Section 3 of the Act, as aforesaid, expressly provides that an institution of high education once declared and notified as a deemed university shall be treated as if a university as defined in Section 2(f) of the Act.

Having settled this position of law, the Court proceeded to examine, whether the Act empowers the UGC to impose any such condition on deemed Universities, as was done vide Guidelines of 2000 and 2004?

The Court though generally while interpreting powers and functions of UGC of determination of standards in Universities observed that it certainly includes within its sweep a provision requiring Universities / deemed Universities to obtain approval or prior approval for commencing a new course/programme or for establishing a new department.

The Court on reading of Section 12 of the Act held that UGC could not have in exercise of powers under Section 12 issued a direction / Guideline prohibiting deemed Universities from establishing new department or commencing new programme / course, as Section 12 anything done under Section 12 is to be done in consultation with Universities. The Court noted that it is not the case of UGC that the directives / Guidelines on which it relies to contend that it had prohibited deemed Universities from commencing new course / programme or from establishing new department were issued in consultation with deemed Universities.

The Court thus held that said Guidelines / directives thus cannot be held to be in accordance with Section 12 and thus are of no avail and UGC could not have insisted requiring the deemed Universities to obtain its prior approval before commencing a new course on basis of Guidelines.

The Court though held that it can be done on basis of Regulations, which UGC has framed in year 2010. However, the Court also held that 2010 Regulations have not been given retrospective effect  the same could not have prejudiced the new departments established or new courses/programmes commenced by the deemed University and in establishing/commencing which the deemed University spent considerable effort and money and/or the students admitted thereto or had been conferred degrees thereunder.

The Court eventually felt that subject University is entitled to the declaration that the new departments established by it and the new courses commenced by it (to confer degrees specified in Notifications under Section 22(3) of the UGC Act) prior to coming into force on 21st May, 2010 of the 2010 Regulations are valid. However any course commenced by the petitioner University after the coming into force on 21st May, 2010 of the 2010 Regulations and without obtaining the prior approval of the UGC shall be invalid.

EduLegaL View:

I wish the Petitioners and the Respondents, would have equally pointed out to the Court that Regulations of 2010 is also under litigation and its constitutional validity has been challenged. We would have been entitled by some adjudicatory observations in this case as well.

This Judgement is going to have huge bearing in the cases, wherein UGC has recently issued Notice to 10 Deemed Universities asking them to shut thier off-campuses. This Judgement basically nullifies the notice.