SIKKIM MANIPAL UNIVERSITY Vs. UNION OF INDIA
LAWS(SIK)-2020-1-1
HIGH COURT OF SIKKIM
Decided on January 03,2020

Sikkim Manipal University Appellant
VERSUS
UNION OF INDIA Respondents




JUDGEMENT

MEENAKSHI MADAN RAI,J. - (1.)This Writ Petition pivots around the vires of the impugned Public Notice dated 19.07.2016, issued by the Respondent No.2, inter alia prohibiting Universities/Institutions from conducting examinations for their Open and Distance Learning Programmes outside the territorial jurisdiction of the University's location, followed by communications dated 07.10.2016 and 01.11.2016 reiterating the aforestated prohibition including setting up of Examination Centres. Claiming that the Notices are ultra vires the powers of the Respondent No.2 under the parent Statute and have no force of law besides being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India, the Petitioner University seeks the following reliefs;
"a) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction to declare and quash the Public Notice dated 19.07.2016 as violative of Articles 14, 19(1)(g) and 21 of the Constitution;

b) Issue a Writ of Certiorari, or any appropriate Writ, Order or Direction to quash the communications dated 7.10.2016 and 01.11.2016 issued pursuant to Public Notice dated 19.07.2016 to the extent that they seek to prohibit examination centres/conduct examination outside the State where the University is situated; [sic] [b1] Issue a Writ of Declaration, or any other appropriate Writ, Order or Direction to declare and quash the requirement to establish ,,Examination Centres within territorial jurisdiction of the Petitioner University as provided under sub-clause (7) of Regulation 13 of the UGC (Open and Distance Learning) Regulations, 2017 as unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution; [sic] [b2] Issue a Writ of Declaration, or any other appropriate Writ, Order or Direction to declare and quash the applicability of Policy on Territorial Jurisdiction of Universities provided as under sub- clause (ii) of Regulation 3(1) read with Annexure IV of the UGC (Open and Distance Learning) Regulations, 2017 with reference to establishment of Examination Centres as under sub-clause (7) of Regulation 13 of the UGC (Open and Distance Learning) Regulations, 2017 as unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution;

c) pass any such other order or direction as this Honble Court may deem fit in the facts and circumstances of the case;"

(2.)The Petitioner University was established in 1995 by an Act of the State legislature of Sikkim. The Petitioner's case is that their University began offering distance education programs with permission from the Respondent No.2 from the year 2001, and was subsequently granted recognition by the Distance Education Council ("DEC"), Indira Gandhi National Open University ("IGNOU") in October, 2009. That, the University Grants Commission (Open and Distance Learning) Regulations, 2017 ("2017 ODL Regulations") in exercise of powers conferred under Section 26 of the University Grants Commission Act, 1956 ("UGC Act, 1956") has incorporated and codified the restrictions spelt out in the Public Notice and communications supra vide Regulation 13 of the 2017 ODL Regulations which have assumed a statutory character from 23.06.2017. The Policy of the Respondent No.2 pertaining to territorial jurisdiction was challenged by the Petitioner University in Writ Petition No.4 of 2013 and by its decision dated 26.06.2015 a Division Bench of this Court upheld the said Policy. By a Judgment dated 29.06.2015 in WP(C) No.08 of 2015 this Court while reiterating the Judgment dated 26.06.2015, protected certain categories of the Petitioner students who had pursued the distance education program. Pursuant to the decision of this Court in WP(C) No.04 of 2013, the Petitioner University closed down its Study Centres that were operating outside the State of Sikkim duly informing the Respondent No.2, but no undertaking was sought in relation to conducting of examinations within the State of Sikkim only and previously no such bar was contemplated by the Respondent No.2 or the DEC (IGNOU), thus allowing examinations at multiple venues for the convenience of out station students. The regulatory bodies permitted Universities to organize counselling and conduct examinations where there was reasonable concentration of students, hence there is no reason why now such students should be put to inconvenience by travelling to the Headquarters of the Petitioner University only for the purpose of examinations, which militates against the very nature of distance education, besides imposing constraints on the University to arrange logistics. Following approval granted by the Respondent No.2 for certain specified programs for the academic years 2016- 17 and 2017-18, the Petitioner University has admitted about 1,21,000 students. Regulation 13(7) of the 2017 ODL Regulations limits the location of Examination Centres to venues within the territorial limits of the State where the University has been incorporated. That, the examinations are conducted at various locations including Colleges and Universities across the country for the term end examinations, the venues are temporary in nature, varying on a yearly basis, contingent upon the need and convenience of the enrolled students. The Petitioner University thereupon set out a brief summary of the Regulations of distance education program and the Policy on territorial jurisdiction adopted from time to time dividing it into four phases and averring that the DEC at different points adopted varying policies on territorial jurisdiction. That, in Phase III, the DEC as per its 35th meeting held on 10.03.2010 determined that the territorial jurisdiction of State University would be as per their parent Statute, but in its 40th meeting dated 08.06.2012 it took the view that a State University could not have Study Centres located outside its geographical limits, as opposed to Examination Centres or venues, being motivated by the concern that there was franchising of Study Centres across the country which would function as independent units. In Phase IV in August, 2010, a high level Committee was appointed by the Central Government under the chairmanship of Prof. (Dr.) N. R. Madhava Menon for suggesting measures to regulate standards of education being imparted through distance mode. The Committee found that franchising of Study Centres needed to be addressed and recommended setting up of a dedicated statutory body for regulation of distance education but did not advise that Study Centres ought not to be permitted outside the limits of the State. That, in the interim such regulation could be taken over by the Respondent No.2. Pursuant to the Committee Report, on 29.12.2012, the Respondent No.1 issued a policy direction to the Respondent No.2 to frame regulations for the purposes of distance education and indicated that the Report of the Madhava Menon Committee may be adopted. The Respondent No.2 after assuming regulatory control issued Public Notices dated 24.06.2013 and 27.06.2013, prohibiting Study Centres outside the State as also communication dated 23.08.2013 to the Vice Chancellors of Universities stating the Policy on territorial jurisdiction of Study Centres. A communication in August, 2014 also referred amongst others to examinations being operated by the University and that it could not be conducted independently by the Study Centre. That, the position pertaining to Study Centres is now settled by the decision of this Court in WP(C) No.04 of 2013, dated 26.06.2015, but the scope of that Policy is now sought to be enlarged by the Respondent No.2 to include conduct of examinations out of the State. The Petitioner University preferred a fresh application on 10.08.2015 before the Respondent No.2 seeking continuation of recognition for offering ODL programs for the academic year 2015-16 which was accordingly granted, but the Petitioner University was to comply with mandatory terms and conditions set out therein, which are being duly complied. The recognition accorded to the Petitioner University for the academic year 2017-18 on 21.03.2017, reiterated the terms and conditions as set out for the academic year 2016-17, by letter dated 21.03.2016. However the letter did not make any reference to territorial restrictions for Examination Centres. That, the Respondent No.3 vide its letter dated 13.05.2016 directed the Petitioner University to confirm their adherence to guidelines issued by the Respondent No.2 on territorial restrictions, franchisees and Study Centres outside the jurisdiction of Sikkim without extending the restrictions to Examination Centres. The Petitioner in its reply affirmed the same.
(3.)That, the territorial jurisdiction policy set out in the public notice of 27.06.2013 applies to study centres, while conduct of examinations at hired venues outside the State by the Petitioner University does not dilute the standards of education. Pursuant to the Public Notice dated 19.07.2016, a complaint lodged by one Mr. Dibyendhu Pradhan, dated 25.07.2016, was forwarded to the Petitioner University for comments, by the Respondent No.2, which contained the allegation that the Petitioner University continued to run Examination Centres outside the State of Sikkim and sought cancellation of the recognition granted for the academic year 2016-17. Vide communication dated 18.08.2016, a confirmation was sought pertaining to closure of all its Centres outside its territorial jurisdiction which was responded to by the Petitioner University on 29.08.2016, affirming the same. A further letter dated 06.10.2016 of the Respondent No.2 directed the Petitioner University not to conduct online examinations till formulation of UGC Guidelines. The Respondent No.2 issued impugned communication dated 07.10.2016 reiterating the requirement of strict adherence to territorial jurisdiction policy including setting up of Examination Centres. This was followed by communication dated 01.11.2016 stating that, some Universities were found to be operating in violation of the directions of the Respondent No.2 pertaining to territorial jurisdiction on Study Centres and conduct of examinations. The Petitioner University then came across news reports suggesting that Respondent No.1 has issued directions to the Respondent No.2 to register First Information Reports against errant State and private Universities flouting norms on territorial restrictions, purportedly issued in exercise extraordinary powers of the Respondent No.2 under Section 20 of the UGC Act, 1956. That, it is unclear whether the purported direction extends to Examination Centres as well. If it has been issued under Section 20 of the UGC Act, 1956 it clearly contradicts the earlier directions dated 29.12.2012 issued under the same provision. The Petitioner University approached the Respondent No.2 and the Ministry of Human Resource Development, vide letter dated 19.01.2017, requesting them to reconsider the impugned restrictions imposed on examination venues to which no response was received from either. On 23.06.2017, the Respondent No.2 published the ODL Regulations in the official Gazette and brought it into force with immediate effect. Vide Notification dated 29.06.2017, the Respondent No.2 exempted all Universities holding valid recognition prior to 23.06.2017 and allowed them to continue their ODL programs for the academic year 2017-18. On 17.07.2017 another Public Notice was issued by the Respondent No.2 stating that the 2017 ODL Regulations would be operationalised from the year 2018- 19, consequently the requirement to apply afresh for continuation of recognition under the ODL Regulations would commence from 2018-19. The Petitioner submitted its application seeking approval for the academic year 2018-19 on 17.10.2017 as per the ODL Regulations besides being in the process of obtaining accreditation from the National Assessment and Accreditation Council ("NAAC"). That, the Respondent No.2 failed to ensure wide consultation or give prior notice to universities and students before finalization of the ODL Regulations although it covers a wide array of activities on distance education. That, presently the Petitioner is concerned with Regulations 2(a) [sic], 3(1)(ii), 13(7) read with Annexures III and IV of the 2017 ODL Regulations affecting Examination Centres. Regulation 2(g) and Regulation 2(k) maintain a distinction between "Examination Centres" and "Learner Support Centres", respectively, wherein the activities of the examination centre are restricted to conduct of examinations. That, the definition of ,,study centre as provided in the UGC (Establishment of and Maintenance of Private Universities) Regulations, 2003 ("2003 UGC Regulations") and ,,learner support centre in the 2017 ODL Regulations are more or less identical. That, Regulation 3(1)(ii) requires the Universities to adhere to the policy of territorial jurisdiction as a necessary pre-condition for grant of recognition, being a verbatim reproduction of Public Notices dated 24.06.2013, 27.06.2013 and 23.08.2013. That, the Respondent No.2 vide its Public Notice dated 18.07.2017 published and sought feedback on the draft UGC (Online Education) Regulations, 2017 which incorporated the recommendations of the Madhava Menon Committee Report and allowed the conduct of examinations through technologically supervised mode or at campuses of Universities through internet, resulting in dichotomy on territorial policy between the 2017 ODL Regulations and draft UGC (Online Education) Regulations, 2017. The Respondent No.2 is revisiting the 2017 ODL Regulations to resolve the issues flagged inter alia by the Petitioner University, who has also reminded the Honble Minister to re-examine the issue on Examination Centres but the provisions remain unattended, despite amendments on two occasions. That, the bar on the conduct of examinations outside the State of Sikkim is arbitrary, irrational, unreasonable, discriminatory and plainly opposed to the very concept of distance education and the objective of reaching out to students in remote areas, hence, the prayers in the Writ Petition.
By an additional affidavit dated 15.02.2017 the Petitioner sought to file additional documents being a copy of the University Undertaking, dated 15.02.2017 and copy of the information supplied by the UGC on information sought under the RTI Act. The Petitioner University vide the first document stated that no study centres will be established outside the State and all examinations centres may notwithstanding be located in various parts of the country provided that they remain under the direct supervision and oversight of the University. The information under the RTI Act which dated 12.04.2016 states on the query of the applicant that as per public notice of the Respondent No.2 dated 27.06.2013 there are no restrictions on "Examination Centres" outside the State.

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