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

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

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!

Class 10th pass student has right to get admitted in Class 11th in same School: Supreme Court

In a recent landmark ruling by Supreme Court, a student who has studied till Class 10th in any school has been granted the right to be admitted in Class 11th in the same school.

Though Supreme Court dismissed the Petition of a similarly placed students, due to peculiar facts and circumstance of the case, however, in landmark observation, is held as under:

“ Before parting with the order, it goes without saying that the students who study up to Class X in any school whether aided or non-aided, such students are entitled to get admission in Class XI in the same school unless he or she declines before the admission is closed. However, in which stream they are to be admitted, it depends upon their merits and performance that shall be decided by the school authority.”

In the present case, a student had filed case against a Chandigarh based private school for not giving admission in “medical stream” citing ‘low aptitude’ for the said stream, instead was offered “commerce stream”. The student being aggrieved had first approached the High Court unsuccessfully before filing SLP in Supreme Court.

EduLegaL View:

Many private school throw their Class 11th Standards open for public to attract meritorious students to improve results and standings. In this pursuit, a student having studied till class 10th in a school is denied the opportunity to continue in the School.

This Judgement echoes the larger cause of the student community. Class 11th and 12th being critical for a child’s future, it is important that a student is comfortable in the learning ecosystem. Sudden change on the basis of some aptitude test or scholastic evaluation may disturb a student, affecting his career.

However, many states in the country follow “Centralised Admission Process” for admission to class 11th. We need to understand the impact of this Judgement on such existing systems.

The Judgement is also balanced in the sense that it also entitles the School to decide the stream depending on merit and performance.

Ravi Bhardwaj | mail@edulegal.in

 

 

 

 

 

SC suggests Govt. to scrap reservation / quotas in super-speciality medical courses

The Supreme Court has observed that admissions to institutions of higher education in particular medical education should be based on merit and not reservations, and urged the central government to take objective steps in eliminating reservation in super speciality medical courses. Supreme Court has made this suggestion in the general interest of the country and for improving the standard of higher education and thereby improving the quality of available medical services to the people of India.

The Hon’ble Supreme Court echoed the same feeling as was done earlier in another case by Supreme Court itself and reiterated the aspirations of others so that authorities can objectively assess and approach the situation so that the national interest can become paramount. The earlier judgement of the Court had also suggested the Government:

“We hope and trust that the Government of India and the State Governments shall seriously consider this aspect of the matter without delay and appropriate guidelines shall be evolved by the Indian Medical Council so as to keep the Super Specialities in medical education unreserved, open and free.”

The Hon’ble Court also expressed its concern on the delay in addressing the issue and observed that fond hope has remained in the sphere of hope though there has been a progressive change. The Court also felt that said privilege remains unchanged, as if to compete with eternity.

The judgment came based on a batch petitions complaining about eligibility criteria for admissions to certain courses – DM (Doctor of Medicine) and MCh (Master of Chirurgiae)- in particular, Andhra Pradesh, Telangana and Tamil Nadu permitted only those domiciled in these states. This means that while candidates domiciled in these states can sit for exams in other states, students from other states are barred from taking exams in these states. The petitioners had challenged these provisions on ground of violations of right of equality and equal opportunity, which has been granted in Articles 14 and 16 of Constitution of India.

SC disapproves UGC process of inspection by photographs and video-camera

UGC, the apex regulator of Higher Education in the country has found itself in line of fire from the Apex Court of the Country.

While hearing Petitions filed by some Deemed Universities, Supreme Court had earlier sought response from UGC as to modus operandi followed for assessment of Deemed Universities. It was hearing Application questioning the process of assessment of UGC by aid of photographs and presentations.

The matter after being adjourned on 23.09.2014 and 25.09.2014, was heard finally on 26.09.2014.

The Hon’ble Supreme Court disapproving the process of assessment by photographs and presentations observed in its order dated 26.09.2014 as under:

“ The singular grievance that has been agitated in the aforesaid I. As. is   that   the  UGC instead of taking recourse to physical inspection of the concerned institution, have adopted an innovative modus operandi by inspecting through photographs and video camera. We cannot conceive of such a situation.

 In our considered opinion, inspection would mean in all its connotative expanse physical inspection from all scores and spectrums. Neither the petitioners can have a restrictive or constricted meaning on the same nor the UGC can put a gloss over it. A physical inspection is fundamentally a physical inspection and we so repeat at the cost of repetition.”

While disapproving the process of photographs and video-presentations, the Apex Court directed UGC to inspect the institutions, who had filed Applications within a period of 12 weeks. It also directed that after the inspection is conducted, UGC shall point out the defects/defaults to the concerned Institution allowing them reasonable time to rectify the same.

The Apex Court has further clarified that it is only after some reasonable time has been granted to the inspected University to rectify the defect, the Report shall be submitted to Central Government and the Court.

EduLegaL View:

The Central Government relying on the photographs and presentations method of P N Tandon Committee painted an ugly picture of Deemed Universities in India for last 5 years. Did it ever make sense??? The Deemed Universities suffered.

It is now bye bye Tandon Committee and Task Force !!