SCA/657/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 657 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SANJEEVNI EDUCATION TRUST THRO PRESIDENT - B S SOLANKI - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR HJ NANAVATI for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 26/03/2008 ORAL JUDGMENT 1. Rule. Ms. Trusha Patel learned AGP waives service of notice of rule for the State SCA/657/2008 2/13 JUDGMENT Authority. 2. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today. 3. The short facts of the case appear to be that the petitioner is a public trust, registered under the Bombay Public Trust Act (hereinafter referred as to the 'Act') desirous to start Study Center for distance education of Shri Yashwantrao Chavan Maharashtra Open University (YCMOU) (hereinafter referred as to the 'Open University' for the sake of convenience). It appears that on 30th December 2006, the petitioner applied to the University for opening study center of three courses, namely Diploma in Electronics Engineering (Basic), Diploma in Mechanical Engineering (Basic) and Diploma in Computer Technology (Basic). On 12.4.2007 as per the petitioner, the officers of the University examined the proposal, including the verification, and ultimately granted provisional affiliation for study center of 'Electronic Engineering Programmes (ESEP)' and/or SCA/657/2008 3/13 JUDGMENT 'Mechanical Engineering Programmes (MLEP)' on condition that NOC is granted by the Government of Gujarat. Based on the same, the petitioner applied to the Director of Technical Education on 16.4.2007, to grant NOC, as required by Open University. As per the petitioner number of inquiry was made, and there were remainders, however, no actions were taken and therefore, the petitioner had to prefer SCA No. 21238 of 2007, before this Court, and this Court directed vide order dated 6.12.2007, to decide the representation of the petitioner within stipulate time limit. As per the petitioner, the detailed explanation and clarification were made to the concerned authority, and thereafter the petitioner further repeatedly made inquiry, and reminders but no decision was taken. Therefore, the petitioner is once again constrained to approach before this Court by preferring present petition. 4. It appear that on 24.1.2008, the Joint Director Technical Education, Gandhinagar, communicated to the petitioner that issuance of NOC for study SCA/657/2008 4/13 JUDGMENT center is not within the purview of this office. Further, the Joint Director of Education (college) working in the office of the Commissioner, Higher Education has also communicated to the petitioner, vide order dated 8.1.2008, that no further consideration is required for grant of NOC, by his office for opening study center of distance education. Therefore, also the grievance is now raised by the petitioner that the stand of the Government appears to be that it has no power, nor has to consider matter for grant of NOC, and hence, this Court may issue appropriate direction. 5. Heard Mr. Nanavati learned Counsel for the petitioner, Ms. Trusha Patel learned AGP for the State Authority. 6. The learned Counsel for the petitioner has submitted that as per the statutory provisions of Open University read with Indira Gandhi National Open University Act 1985 (hereinafter referred as to the 'IGNOU'), the distance education through Electronics and Communication system is permissible. He also submitted that SCA/657/2008 5/13 JUDGMENT there are other Open University like Shri Yashwantrao Chavan Maharashtra Open University (YCMOU) imparting distance education, under the control and supervision of IGNOU. He therefore, submitted that as the study center for the Open University in the present case, is being opened for the first time, the Government Officers are not well worse with the scheme, and as a result thereof they have declined to exercise power for grant of NOC. 7. Learned Counsel for the petitioner by citing example of various other Open Universities, relied upon detailed submitted on page 9 of the petition, which have been established under the legislative Act, of the concerned State. Therefore, he submitted that initially operation of the area of the Shri Yashwantrao Chavan Maharashtra Open University (YCMOU) was within the State of Maharashtra, however, thereafter, there is amendment in the year 2002, which permits to start and conduct the sub-center or study center in the territory outside the State of Maharashtra but with the prior approval of SCA/657/2008 6/13 JUDGMENT the State Government. He submitted that NOC is not issued because the officers of the State Government are unable to consider the scheme of Open University, and the permissibility thereof. 8. Whereas on behalf of the State Authority learned AGP Ms. Trusha Patel submitted that State Government, as such has already taken policy decision vide resolution dated 4.10.2007 for the courses of the B. Ed., B. P.Ed etc., through affiliation of the University outside the State, for not to grant NOC. She submitted that the resolution of the Government for such purpose is produced at Annexure R-I with the affidavit in reply filed on behalf of the respondent Nos. 1 and 3. It is submitted that the Officers of the State Government, as such has not denied NOC, but have communicated that issuance of NOC do not fall within their power, and therefore, it cannot be said that NOC is denied. She also submitted that even if the State Government has to consider the matter for issuance of NOC, the State Government should be at the liberty to examine of relevant aspect germen to the SCA/657/2008 7/13 JUDGMENT exercise of the power, and the same may take some time and therefore, this Court may grant reasonable time for taking appropriate decision, which may also include the policy decision on the part of the State Government. 9. It is true that issuance of NOC is essentially a domain of State Government concerned, but such power deserves to be exercised, keeping in view the interest of education and the control thereof. It would be expected for the State Government to encourage education in the State, and more particularly the higher education, provided the same is meeting with the standard criteria or the norms prescribed by the UGC, and the study for such purpose is approved by the UGC, and statutorily recognised. If under the guise of any unrecognised degree course, or certificate course, any person or the institution is desirous to open the education center, the State Government may decline such permission. However, if such activity is statutorily recognised, keeping in view the availability of such education in such area, the SCA/657/2008 8/13 JUDGMENT State Government finds that there is requirement and there is shortage of education in a particular area, it would be expected for the State Government to grant NOC. At the same time, if the State Government finds that sufficient number of colleges/education institutions exists to facilitate the education in such area, the State Government may decline NOC. There may be other ground and consideration germen to the exercise of the power on the part of the State Government for grant of NOC or otherwise, and there cannot be exhaustive list. However, suffice to state that while exercising power the State Government is expected to keep in mind the primary consideration of encouraging the education in particular area, but not by compromising with the quality, reliability and genuineness of education to be imparted and the degree conferred thereon. 10.If the matter is examined in light of the aforesaid background, it appears that as per IGNOU the study through distance education is one of the recognised mode for studying through SCA/657/2008 9/13 JUDGMENT Electronics and Communication system. The essential purpose of encouraging such education is to come out from the traditional system of attending classes during the particular fixed period or standard hours, but to get it substituted through Electronics and Communications system, as per the convenience of the person concerned, and more particularly the students who are otherwise engaged in other various activities in their life. This system of education through distance learning is essentially with a view to see that such benefit of education is made available at long distance place, which normally may not be possible for the person by personal attendance. So far as the standard of education and the quality is concerned, there is no compromise but only dispensation is of personal attendance while studying, because the study is through Electronics and Computer system. IGNOU was the first University established for such purpose having operation throughout Country. Based on the same system, various Universities have come SCA/657/2008 10/13 JUDGMENT out and Shri Yashwantrao Chavan Maharashtra Open University (YCMOU) is one of such University. The material which are produced by the learned Counsel for the petitioner during the course of hearing shows that as per the statutory provisions of the said University, and more particularly Section 5(01)(xa) starting or conducting of study center in any territory outside the State of Maharashtra is made permissible by University, but with the approval of the State Government. Therefore, the activities which the petitioner proposes to make, is not prohibited by any statutory provisions, but is made permissible by the statutory provisions, may be of Maharashtra Act. It will be for the State Government to examine as to whether such conferment of the degree or opening of the study center is approved or made permissible by the UGC or not, but as the opening of study center of the University outside the State of Maharashtra is a mode recognised by the said Act of Maharashtra, the activity of the petitioner cannot be said as SCA/657/2008 11/13 JUDGMENT totally improper. 11.As the opening of the study center even if it is permitted by the University is dependent upon the approval of the Government concerned, it would be required for the State Government to be examined the matter, keeping in view the availability of such education in such area, and other relevant circumstances germen to the exercise of the power. Each case is required to be examined by the State Government individually, and there cannot be any wholesome exercise of the power of not to grant NOC for any conducting of the education, merely because the University or the open University is situated outside the State of Gujarat. It may be that while examining the matter, the State Government may put certain restrictions or conditions while granting NOC, so as to ensure that high quality of the education is maintained, and the students are not made to suffer on account of any undesired activities by the institution etc., including that of no exploitation of the students or no conferment of SCA/657/2008 12/13 JUDGMENT the dummy certificate or degree etc. As observed earlier the State Government has to essentially examine the local needs of the education in the same or near by peripheral area then to take appropriate decision. As the matter is up till now not examined by the State Government nor any decision is recorded after consideration of the aforesaid and other relevant ground and the circumstances, I find it proper to leave the matter at that stage, without observing further except that the State Government shall take appropriate decision, keeping in view all relevant circumstances for exercise of the power in the matter of grant of NOC to an institution affiliated with the Open University outside the State. 12.In view of the above, the decision of the Joint Director Technical Education and the Commissioner Higher Education are quashed and set aside with the direction that the Secretary, Education Department of the State Government to examine the matter, keeping in view the observations made by this Court hereinabove and SCA/657/2008 13/13 JUDGMENT in accordance with law as early as possible, preferably within a period of six weeks from the receipt of the order of this Court. 13.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Direct service is permitted. (JAYANT PATEL,J.) Suresh*