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

UGC constitutes Committee regarding unauthorized Off Campuses of Deemed Universities

UGC has decided to constitute a 5 Member Committee to consider the issue related to the off-campuses established/started by some Institutions Deemed to be Universities without prior approval of UGC/Ministry of HRD.

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 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. The Delhi High Court was pleased to direct the MHRD / UGC not to take any coercive step in the matter.

Later, by way of flaunted discrimination, an unauthorized off campus of a Government funded Deemed University was regularized.

UGC after considering the representation of all the concerned Deemed Universities has decided to constitute under the Chairmanship of Prof. H. Devaraj. Other members of the Committee are Prof. Mohammad Miyan, Prof. Sanjay Govind Dhande and Dr. K.N. Shanti.

As per UGC Deemed University Regulations, 2010 and Guidelines prevailing earlier, an Off Campus can be started only with the permission of UGC / MHRD as the case may be. It is the case of UGC / MHRD in respect of the stated Deemed Universities that no approval has been granted by UGC / MHRD and hence these campuses being illegal, should be shut down immediately.

EduLegaL View:

Another unfortunate example of historical functioning style, first create panic and chaos, then ask them to make representation and then appoint a Committee to look into the matter and then decide as it pleases you !

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

Read Related Articles:

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

UGC to consider Ph.D period as teaching experience

UGC realizing the scarcity of qualified faculty and with objective to encourage research students has now notified on 01.03.2016 Ph.D research period should be considered as experience for recruitment and promotion in the higher educational institutions. UGC has taken this decision in it’s 512th meeting held recently.

The UGC circular published on its website as Clarification on counting of the period of active service spent on pursuing Ph.D.”, which reads that the period of active service spent on pursuing Research Degree i.e. for acquiring Ph.D degree simultaneously, without taking any kind of leave, may be counted as teaching experience for the purpose of direct recruitment/ promotion to the post of Associate Professor and above.

EduLegaL View

It is clear from usage of expression “simultaneously” that this is applicable only to whom those who are already in service and pursuing Ph.D. simultaneously as a part time course and in that sense, it fails to meet the vision that it desired to.

However, the condition of “without taking any leave” is really harsh as it is unimaginable that a person will not take leave during 2-3 year of coursework. This harsh condition leaves this resolution only as an eyewash.

In any case, an employed faculty pursuing Ph.D., simultaneously will have his employment counted even otherwise as “experience”, then what is the benefit of this Notification?

Sometimes, the clarification creates more doubts than clarity !

Ravi Bhardwaj | mail@edulegal.in

 

 

 

 

UGC again amends the quashed / sub-judice Deemed University Regulations

University Grants Commission has again amended substantive provisions of UGC [Deemed to be Universities] Regulations, 2010 relating to appointment of Vice Chancellor and Off Campus Centre being run by Centrally funded Deemed Universities.

UGC [Deemed to be Universities] Regulations, 2010 were notified on 21.05.2010 on the basis of recommendations of Tandon Committee / Task Force constituted by MHRD. On notified, several Deemed Universities had challenged the constitutional validity of the Regulations in several High Courts.

Hon’ble High Court of Karnataka vide detailed Judgement dated 22.05.2014 had quashed the Regulations being unconstitutional. Madras High Court had upheld the validity, however, when the same was challenged, the judgement was stayed. Similarly litigations are pending in Punjab and Haryana High Court, Uttarakhand High Court, Bombay High Court [Aurangabad Bench]. Later, MHRD has filed Transfer Petition before the Hon’ble Supreme Court seeking to transfer all the matters relating to the Regulations to Supreme Court, which is also pending.

In the recent amendment, UGC has enlarged the scope of Regulation 12, which relates to Off Campus Centres of Deemed Universities established and managed by Government. Originally as the Regulations stood, there was no restriction placed on the number of Off-Campus, being run by a Deemed University. Later by amendment in 2014, UGC had restricted the expansion of the DUs to limit the number of Off Campus Centre to maximum of Six Off Campuses beyond its geographical boundaries. However, by the amendment notified in 2016, UGC has removed the numerical restriction for Deemed Universities established and managed by Government.

Second amendment relates to appointment of Vice Chancellor, by which UGC has wisely undone the previous amendment and restored the original position. By the amendment in the year 2014, UGC had completely done away with the procedure prescribed in the earlier Regulations and prescribed that the process of selection of Vice Chancellor shall be in accordance with the UGC Minimum Qualification for Appointment of Teachers and Other Academic Staff Regulations, 2010. However, it has now taken a u-turn and restored the original position to specify that Chancellor shall make the appointment of Vice Chancellor from the 3 names recommended by the Selection Committee.

It further proceeds to prescribe different composition of Selection Committee for Institutions being completely funded by Central / State Government, being funded more than or equal to 50 % or being funded less than 50 % by providing nominees of MHRD / UGC, as the case may be.

EduLegaL View

It is a known fact that the removal of restriction as regards Off Campus Centre for Government Universities was mainly to accommodate several Government Deemed Universities, which were running illegal / unauthorized campuses.

Under our Constitution, discrimination is permitted, but then the grounds for discrimination has to be “reasonable”. I do not see any reasonability in discriminating against the private Deemed Universities and not allowing them to expand as much as Government Deemed Universities. The occasion and cause for amendment is also suspicious obviously to legalise the illegality by Government machinery.

UGC cannot also loose sight of the fact that the UGC Deemed Universities Regulations, 2010 has been declared unconstitutional and invalid by Hon’ble Karnataka High Court, while deciding bunch of Petitions filed by several Deemed Universities. Similarly there is STATUS QUO as respect the said Regulations in favour of several Deemed Universities by order of Hon’ble Madras High Court.

 The Argument can continue !

Ravi Bhardwaj | mail@edulegal.in

Read Related Stories:

UGC Deemed University Regulations, 2010 declared illegal by Hon’ble Karnataka High Court

Summary of the Judgement of the Hon’ble Karnataka High Court on UGC Deemed Universities Regulations, 2010

UGC amends Deemed Universities Rules relating to Admission, Governance

UGC relaxes criteria to appoint Chancellor for Certain Deemed Universities

Two sets of varsity rules

 

 

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