Case: Orissa Lift Irrigation Corp. Ltd. &amp; Others Vs. Rabi Sankar Patro &amp; Others

excellence, research and advancement in its chosen field for which such status was accorded. There is no embargo on such Deemed to be University in entering new areas of education or introducing new courses but in that case, it cant demand or receive complete relaxation from regulatory regime. It must satisfy all those requirements which a normal institution is required to. The stand taken by the UGC in the affidavit of Dr. Ved Prakash, as well as its submissions in our view, are correct and we reject the submission of Dr. Dhavan. The logical conclusion is that a Deemed to be University in the second category mentioned hereinabove is still an institution of the stature of a "technical institution" and if it desires to introduce new courses it must fulfill the requirements of 1994 AICTE Regulations. A Deemed to be University which has achieved excellence in a particular field may be given deferential treatment but nonetheless it has to satisfy the requirements for new technical institution. Pertinently, both JRN and IASE, while establishing their faculty or colleges in engineering at their main Campus sought approvals from AICTE. Further, even for introducing courses in management which come under the definition of technical education under the AICTE Act, appropriate permissions were sought from AICTE. We therefore conclude that the Deemed to be Universities in the present case were required to abide by the provisions of 1994 AICTE Regulations and could not introduce courses leading to award of degrees in Engineering without the approval of AICTE. 1994 AICTE Regulations or any subsequent Regulations will have to be understood in the light of our decision.44. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under sub- clause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction.45. It was laid down by this Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others, 2011(1) S.C.T. 258 : (2009) 4 SCC 590 that no relaxation could be granted in regard to the basic things necessary for conferment for a degree and if a mandatory provision is not complied with by an administrative authority, the action would be void. This leads us to conclude that the permissions granted by DEC in the first instance allowing the Deemed to be Universities in question to introduce courses leading to the award of degrees in engineering were illegal and opposed to Law. The illegality in the exercise of power was to such an extent that it could not be cured by ex post facto approvals granted later. We have also seen that the exercise of grant of ex post facto approvals, as a matter of fact, was only superficial and perfunctory. Such exercise was done in the face of declared policy statements governing the field and even when specific complaints were received about concerned Deemed to be Universities. Yet, without causing any inspection such power was exercised which part is already dealt with and the exercise of power has been found by us to be suffering from illegality and infirmity. The only thing in favour of the concerned Deemed to be Universities is the fact that the Joint Committee of UGC - AICTE - DEC had endorsed the decision though such exercise was also completely flawed. That exercise was against Para 10 of the MoU dated 10.05.2007, which contemplated causing of inspections and the decision dated 11.05.2007 of the Joint Committee itself that for an Institution/University to offer distance education programmes it was mandatory to offer the same in face to face mode.46. Having found the entire exercise of grant of ex-post-facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex-post-facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply for ex-post-facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 20012005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of said ex-post-facto approval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. The aforesaid chart shows that the "Deemed to be University" status was conferred keeping in view the potential to offer academic programs in specific domains of knowledge. For example institutions at serial Nos.1 and 2 in the aforesaid table had specialized in Social Work, Education, Arts and Commerce. However by virtue of their "Deemed to be University" status, these institutions thereafter started distance education programs in subjects or courses leading to award of B.E. and B.Tech degrees which were not within their field of specialization.We have referred to the notifications, circulars and guidelines as were in existence and in force in 2004. The Deemed to be Universities in the present case had started their distance education programmes without taking any prior approval from any of the authorities including UGC, AICTE or DEC. However, it appears that in terms of paragraphs 4 and 5 of 2004 UGC Guidelines, the advertisement of DEC dated 03.02.2004 and circular of UGC dated 16.03.2004, the concerned Deemed to be Universities soughtapproval for courses conducted by them through distance education mode.In the backdrop of aforesaid facts, the learned Amicus Curiae is right in his submission that thefacto approvals granted in the present matters were completely opposed to the policy statements governing the matters in issue. He is right that the concerned Deemed to be Universities admitted students, conducted courses and granted degrees in the absence of statutory approvals. It is, however, the submission of Dr. Rajeev Dhavan, learned Senior Advocate that a Deemed to be University is entitled to start new courses in technical education (including through distance education mode) in terms of law laid down by this Court in Bharathidasan (supra) and that there was no bar or prohibition in any statute or statutory instrument when the Deemed to be Universities started the instant courses in distance education mode. According to him, the inspections could of course be undertaken by UGC in terms of the Statute and if no inspections, as a matter of fact were conducted, the Deemed to be Universities could not be atis thus the sole repository of power to lay down parameters or qualitative norms for "technical education". What should be course content, what subjects be taught and what should be the length and duration of the courses as well as the manner in which those courses be conducted is a part of the larger concept of "technical education". Any idea or innovation in that field is also a part of the concept of "technical education" and must, as a matter of principle, be in the exclusive domain of AICTE.Technical education leading to the award of degrees in Engineering consists of imparting of lessons in theory as well as practicals. The practicals form the backbone of such education which isapproach involving actual application of principles taught in theory under the watchful eyes of Demonstrators or Lecturers. Face to face imparting of knowledge in theory classes is to be reinforced in practical classes. The practicals, thus, constitute an integral part of the technical education system. If this established concept of imparting technical education as a qualitative norm is to be modified or altered and in a given case to be substituted by distance education learning, then as a concept the AICTE ought to have accepted it in clear terms. What parameters ought to be satisfied if the regular course of imparting technical education is in any way to be modified or altered, is for AICTE alone to decide. The decision must be specific and unequivocal and cannot be inferred merely because of absence of any Guidelines in the matter. No such decision was ever expressed by AICTE. On the other hand, it has always maintained that courses leading to degrees in Engineering cannot be undertaken through distance education mode. Whether that approach is correct or not is not the point in issue. For the present purposes, if according to AICTE such courses ought not to be taught in distance education mode, that is the final word and is bindingunless rectified in a manner known to law. Even National Policy on Education while emphasizing the need to have a flexible, pattern and programmes through distance education learning in technical and managerial education, laid down in Para 6.19 that AICTE will be responsible for planning, formulation and maintenance of norms and standards including maintenance of parity of certification and ensuring coordinated and integrated development of technical and management education. In our view whether subjects leading to degrees in Engineering, could be taught in distance education mode or not is within the exclusive domain of the AICTE. The answer to the first limb of the first question posed by us is therefore clear that without the Guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the Deemed to be Universities were not justified in introducing suchare concerned in the present cases with the second category of Deemed to be Universities. In the present cases, none of the Deemed to be Universities was conferred such status for its excellence in the field of Engineering. Their fields were completelyAs a matter of fact, JRN and IASE did not even have regular college or faculty for Engineering at its main campus. And yet, they started courses in Engineering through distance education mode without the approval of AICTE, relying on the dictum in Bharathidasan. According to Dr. Rajeev Dhavan, learned Senior Advocate, they were entitled as a matter of right to start such courses.40. The affidavit of Dr. Ved Prakash as referred to hereinabove as well as the stand of UGC and the submissions made by Mr. Maninder Singh, learned Additional Solicitor General make it clear that such Deemed Universities in the second category mentioned above are not entitled, as a matter of right, to introduce courses leading to degrees in Engineering without the approval of AICTE. According to the submission of the learned Additional Solicitor General, the conferral of status is only because of excellence in a particular field or subject which then entitles the Deemed to be University to utilise its excellence to conduct research and achieve advancement in that field. However merely because such status was conferred on the concerned institution, in his submission, would not entitle it to similar protection in the second category cases, as available to a University by virtue of the decision of this Court in Bharathidasan (supra).41. Paras 1 and 2 of Bharathidasan (supra) show that the University constituted under the State law had its area of operation over three Districts of Tamil Nadu and by virtue of such State law could provide among other things, instructions and training in such branches of learning as it may determine. The express grant or empowerment thus came from the State enactment to enter into any field of learning as it may determine and introduce new courses in that behalf. However the University would be bound by territorial restrictions, in that it could not go beyond the territory of three Districts over which it was given Jurisdiction. But if we accept the submission of Dr. Rajeev Dhavan, learned Senior Advocate, there would be no such territorial restrictions on a Deemed University and it could open new departments, introduce new courses in any field anywhere in the Country. By way of illustration, we can consider the case of a private institution affiliated to a University such as Bharathidasan University, which after some length of time is conferred Deemed to be University status for excellence achieved by such private institution, say in the field of adult education. If we accept the submission of Dr. Dhavan, upon such conferral of Status as Deemed to be University, this originally affiliated private institution can now introduce any courses in technical education anywhere in the Country but the original University would be bound by territorial restriction.42. The grant or empowerment in Bharathidasan (supra) in favour of the University in question came from the State enactment which was its Charter. There is no such Charter or grant in favour of a Deemed to be University under any provision of the UGC Act. All that the UGC Act does is to confer Deemed to be University status on an Institution which has achieved excellence in its chosen field so that its development in the concerned field and its attempts to attain excellence and conduct research are not hampered on any count and at the same time it could be extended the facilities of Aid. It is precisely for this that the distinction between a regular University established under a Central Act, a Provincial Act or a State Act and an Institution Deemed to be University is maintained in the UGC Act. A Deemed to be University can certainly award degrees but cannot use the word "University" by virtue of Section 23 of the UGC Act. Even after conferral of such status it still continues to be "an Institution Deemed to be University" and if it is equated with a University in every sense of the term it would lead to incoherent and incongruous results, in that its area of operation or the field of its activity would be completely unlimited and unregulated. In our view that is certainly not the intent of the UGC Act.43. Conceptually there is some difference between the status of a University established under a State law and that of a Deemed to be University. Normally, a University is established with an idea that particular areas or districts of the State need to be catered to. Such University is expected to satisfy the needs or aspirations of people in the area for education and correspondingly empowered to initiate new courses, keeping in tune with the needs of time. The expectations from a Deemed to be University are of a different dimension. What is expected is excellence, research and advancement in its chosen field for which such status was accorded. There is no embargo on such Deemed to be University in entering new areas of education or introducing new courses but in that case, it cant demand or receive complete relaxation from regulatory regime. It must satisfy all those requirements which a normal institution is required to. The stand taken by the UGC in the affidavit of Dr. Ved Prakash, as well as its submissions in our view, are correct and we reject the submission of Dr. Dhavan. The logical conclusion is that a Deemed to be University in the second category mentioned hereinabove is still an institution of the stature of a "technical institution" and if it desires to introduce new courses it must fulfill the requirements of 1994 AICTE Regulations. A Deemed to be University which has achieved excellence in a particular field may be given deferential treatment but nonetheless it has to satisfy the requirements for new technical institution. Pertinently, both JRN and IASE, while establishing their faculty or colleges in engineering at their main Campus sought approvals from AICTE. Further, even for introducing courses in management which come under the definition of technical education under the AICTE Act, appropriate permissions were sought from AICTE. We therefore conclude that the Deemed to be Universities in the present case were required to abide by the provisions of 1994 AICTE Regulations and could not introduce courses leading to award of degrees in Engineering without the approval of AICTE. 1994 AICTE Regulations or any subsequent Regulations will have to be understood in the light of our decision.44. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under subclause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction.45. It was laid down by this Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others, 2011(1) S.C.T. 258 : (2009) 4 SCC 590  that no relaxation could be granted in regard to the basic things necessary for conferment for a degree and if a mandatory provision is not complied with by an administrative authority, the action would be void. This leads us to conclude that the permissions granted by DEC in the first instance allowing the Deemed to be Universities in question to introduce courses leading to the award of degrees in engineering were illegal and opposed to Law. The illegality in the exercise of power was to such an extent that it could not be cured by ex post facto approvals granted later. We have also seen that the exercise of grant of ex post facto approvals, as a matter of fact, was only superficial and perfunctory. Such exercise was done in the face of declared policy statements governing the field and even when specific complaints were received about concerned Deemed to be Universities. Yet, without causing any inspection such power was exercised which part is already dealt with and the exercise of power has been found by us to be suffering from illegality and infirmity. The only thing in favour of the concerned Deemed to be Universities is the fact that the Joint Committee of UGCDEC had endorsed the decision though such exercise was also completely flawed. That exercise was against Para 10 of the MoU dated 10.05.2007, which contemplated causing of inspections and the decision dated 11.05.2007 of the Joint Committee itself that for an Institution/University to offer distance education programmes it was mandatory to offer the same in face to face mode.46. Having found the entire exercise of grant ofapproval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside suchapprovals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply forapproval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 20012005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of saidapproval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students.The factual narration mentioned hereinabove makes certain things distinctly clear. The affidavit of Mr. Ved Prakash discloses how permissions were granted to introduce courses in the present cases without any authority. On one hand, the authorities were proclaiming their policy statements and on the other, despite there being complaints, they went about granting permissions. Their conduct and approach is difficult to explain on any rational basis and leaves much to be desired. We are, prima facie of the view that the conduct of the concerned officials needs to be looked into and investigated whether the exercise of power by them was completely genuine or colourable.The record further shows that time and again warnings were issued to the concerned Deemed to be Universities. Dr. Rajeev Dhavan, learned Senior Advocate is right in his submission that if a Deemed to be University is not to be found functioning within the limits, its recognition as Deemed to be University could be withdrawn. In our view, the concerned Deemed to be Universities had gone far beyond their limits and to say the least, had violated binding policy statements. Even when they did not have any experience in the concerned field and had no regular faculty or college in Engineering, they kept admitting students through distance education mode. When there was nothing at the core, the expansion was carried at the tertiary levels in brazen violation. The idea was not to achieve excellence in the field but the attempts appear to be guided by pure commercial angle.