Kurmanchal Inst. of Degree & Diploma & Ors Vs. Chancellor, M.J.P. Rohilkhand
Univ. & Ors [2007] Insc 615 (17 May 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 2698 OF 2007 [Arising out of SLP (Civil) No. 5023 of 2006]
W I T H CIVIL APPEAL NO. 2699 OF 2007 [Arising out of SLP (Civil) No. 9522 of
2006] S.B. SINHA, J :
1. Leave granted.
2. Kurmanchal Institute of Degree and Diploma is a study centre. It is
recognized by Mahatma Jyotiba Phule Rohilkhand University (for short "the
University"). It was constituted in the year 1975 by issuance of a
notification under Section 4(1-A) of the Uttar Pradesh State Universities Act,
1973 (for short "the Act") The State, however, is yet to make the
first ordinance for the University.
3. Section 5 of the Act deals with territorial exercise of powers providing
that the powers conferred on each University shall be exercisable in respect of
the area for the time being specified against it in the Schedule. The
University is to exercise its jurisdiction within the limits of districts
Badaun, Bareilly, Bijnor, Jyotiba Phule Nagar, Moradabad, Pilibhit, Rampur and
Shahjahanpur in terms of Entry 7 of the Schedule appended to the Act
4. The Executive Council of the University was constituted in terms of
Section 51 of the Act. The power to make ordinance is contained in Section 51
of the Act, clauses (a), (b) and (h) of Section 51(2) whereof read as under:
"(2) Without prejudice to the generality of the provisions of
sub-Section (1), the Ordinance shall provide for the following matters, namely-
(a) the admission of students to the University and their enrolment and
continuance as such;
(b) the courses of study to be laid down for all degrees, diplomas and other
academic distinctions of the University;
*** *** *** (h) all matters relating to correspondence courses and private
candidates;"
5. Section 52 of the Act provides for the manner in which the ordinance is
to be made. Sections 52(2) and 52(2-A) of the Act read as under:
"(2) The First Ordinances of the Universities of Kumaun and Garhwal and
of any other University to be established after the commencement of this Act
shall be made by the State Government by notification in the Gazette, (2-A)
Until the First Ordinances of the Purvanchal University are made under sub-section
(2), the Ordinances of the University of Gorakhpur, as in force immediately
before the establishment of the said University, shall apply to it subject to
such adaptations and modifications as the State Government may, by
notification, provide."
6. We may at this stage notice the facts of the case.
In its meeting on 1.07.2003, the Academic Council granted permission to
start 'distance education'. By a letter dated 17.07.2003, the Vice-Chancellor
of the University sought permission to start courses through Distance
Education. On 1.08.2003, the Registrar of the University sent a letter to the
Personal Secretary of the Chancellor enclosing therewith a copy of the draft
ordinance for launching Degree, Diploma and Certificate Courses through
distance education for obtaining his approval. The Ordinances governing
Distance Education programme were framed in exercise of the power conferred
under Section 52 of the Act. The Registrar of the University by a letter dated
27.08.2003 sought permission from the Principal Secretary, Higher Education to
start the distance education programme. A letter dated 20.01.2004 was issued
from the Office of the Chancellor to the Principal Secretary, Higher Education,
State of U.P.
wherein it was stated:
"As per section 42(2) of the Uttar Pradesh State University Act there
is provision of notification of the first ordinance of the University by the
Government, but the first ordinance of Mahatma Jyotiba Phule Rohilkhand University
has not been notified by the Government till now.
Therefore, in the circumstances mentioned above by sending the photo copy
(with annexures) of the ordinance of Mahatma Jyotiba Phule Rohilkhand
University on the above cited subject I am directed to state that after
examining, the said ordinance may be included in the first ordinance of Mahatma
Jyotiba Phule Rohilkhand University and take necessary action."
7. On 24.02.2004, a letter was sent by the Joint Secretary, Higher Education
I, U.P.Government, to the Registrar of the University wherein approval to
include the ordinance of Distance education was granted. In reply thereto a
letter dated 25.02.2004 was sent by the Registrar of the University with the
request that the ordinances as sent by the University may be included in the
First Ordinances as Chapter No. XXII which is to be framed by the State
Government. By a letter dated 19.03.2004, the State Government granted approval
to run the diploma and certificate courses of the University through distance
education mode. Since the degree course was not included in the letter issued
by the State Government dated 05.04.2004, the Registrar of the University
requested the State Government to grant permission for starting distance
programme under distance education mode.
8. The Chancellor, as noticed hereinbefore, disapproved the proposal for
starting a new course in distance education, by reason of the impugned order
dated 12.08.2005, opining:
"From the above analysis, it is clear that the distance education
programme started by Mahatma Jyotiba Phule Rohilkhand University, Bareilly is
wholly irregular and irresponsible work, which is cancelled with immediate
effect and the University is directed that all the activities related to these
programmes be closed immediately. It is required of the University that the students
who have got enrolled for these programmes the correspondence courses be
started in respect of those students and the students who do not want to
participate in the correspondence courses, their fee be refunded. In addition
to this the Vice Chancellor, Kulsachiva and Financial Controller and other
concerned officers and teachers of Mahatma Jyotiba Phule Rohilkhand University,
Bareilly are warned that such type of illegal programme should not be started
by the University in future."
9. A writ petition was filed questioning the legality of the said order by
the appellants herein which was marked as Civil Misc. Writ Petition No.
75902 of 2005. A Division Bench of the Allahabad High Court by an order
dated 20.12.2005 dismissed the said writ petition relying on a judgment and
order dated 25.07.2005 passed by another Division Bench of the said Court in
Civil Misc. Writ Petition No. 47825 of 2005 titled Allahabad College of
Engineering and Management & Ors. v. His Excellency The Chancellor, M.J.P.
Rohilkhadn & Ors. In the said judgment, the Division Bench inter alia
opined that in absence of the first ordinance issued by the State, the
initiation of the distance education programme was illegal.
10. The Chancellor in his order dated 16.04.2005 noticed that various
universities established under the provisions of the Act had been conducting
courses under the distance education programme without any ordinance having
been made in this regard and it was noticed by the Chancellor that many
Universities have opened such study centres where regular courses had been
going on. The Chancellor, therefore, issued a direction for stopping such
courses which were being run without following the procedure prescribed by law
and the Universities were directed to furnish information within a week. The
Chancellor by an order dated 13.06.2005 further directed that in spite of
specific directions contained in the order dated 16.04.2005 some of the
universities not only continued with the courses but others had even issued
fresh advertisements which according to the learned Chancellor was a serious
matter and as such a direction to the effect that the running of such courses
should be immediately stopped and the study centres should also be closed was
issued. The Chancellor further noticed that such study centres had been opened
by various universities wherefor an extreme step was necessary to be taken.
11. The Division Bench of the High Court opined that in certain
circumstances the Chancellor has the power to act suo motu and the
circumstances mentioned in his orders were exceptional ones writing invocation
thereof.
12. Ms. Sunita Aggarwal, learned counsel appearing on behalf of the
appellants, inter alia would submit that as the appellants were not parties in
the earlier writ proceedings, the decision rendered therein was not binding on
them. Had the appellants been parties, it was urged, they could have shown that
all the necessary steps for making an ordinance had been taken.
The University, the learned counsel would contend, having granted permission
to start the courses pursuant whereto and in furtherance whereof students
having been admitted, it will cause a great hardship to the students if they
are forced to stop their studies and switch over to the distance education programme.
13. Mr. Ravi Prakash Mehrotra, learned counsel appearing on behalf of the
respondents, on the other hand, submitted that such study centres cannot be
legally permitted to be opened beyond the territorial jurisdiction of the
University. It was also submitted that as use of such study centres has
financial aspects, a previous approval of the State was also required to be
taken in terms of Section 52(3)(c) of the Act.
14. The learned counsel would contend that in any event this Court should
take a holistic view of the matter as only 150 students have not opted for
distance education course in terms of the order passed by the Chancellor and
they are in the first semester only. It was pointed out that there exists a
distinction between a diploma course, on the one hand, and a degree course on
the other. Although no objection certificate (NOC) has been granted to
certificate courses, no such permission had been granted for degree courses.
15. The University Grants Commission, which has been constituted in terms of
Entry 66, List I of the Seventh Schedule of the Constitution of India, has
framed regulations in the year 1985 relating to distance education, from a
perusal whereof it would appear that the study centres are such which are
established for helping the students who are undergoing distance education
course.
16. It appears that in order to satisfy itself as to whether the study
centre of the appellants have sufficient infrastructure or not, this Court
appointed a Committee. The Committee submitted its report wherein it was inter
alia stated:
"3) The Committee noted that KIDDE does not offer any academic activity
of its own and supporting either distance education programmes of other
universities or running training programmes for private institutions with help
of guest or invited faculty on pay basis.
4) The Committee, based on the availability of academic facilities and
infrastructure, is of the opinion that KIDDE has basic amenities to serve as a
study centre for delivering distance education programmes. The laboratory
facilities, however, have to conform to curriculum requirements.
*** *** *** 7) The Committee noted that the State Government had restricted
MJPRU distance education programmes only to certificates and diplomas without
any specific mention on the jurisdiction to offer these programmes, where as
per the Act of the University, the jurisdiction of the University is limited to
7 districts of Uttar Pradesh. University by its own offered distance education
programmes through 85 study centres of which 40 centres located out of the
State. University also offered Degree programmes through distance mode that too
in some disciplines not available in campus in formal stream."
17. Although we are inclined to agree with the learned counsel appearing on
behalf of the appellants that for all intent and purport the requirements of
law for making an ordinance by the Executive Council of the University had been
done pursuant whereto new courses could be opened, we are, however, unable to
persuade ourselves to accept the contention that such study centres should be
permitted to be operated beyond the territorial jurisdiction of the University.
Section 5 of the Act clearly states in regard to the territorial jurisdiction
of the University. In terms of the Schedule appended to the Act, the
territorial jurisdiction of the University is confined only to seven districts,
Nainital not being one of them. Each University in the country which is
recognized under the University Grants Commission Act must have their own
territorial jurisdiction save and except for the Central Universities or
specified in the Legislative or Parliamentary Act.
18. The submission of the learned counsel that for the purpose of running a
distance education course, extra-territorial activities must be carried out may
not be entirely correct. It is one thing to say that the University takes
recourse to the correspondence courses for conferring degrees or diplomas but
it would be another thing to say that study centres would be permitted to operate
which requires close supervision of the University. In a study centre, teachers
are appointed, practical classes are held and all other amenities which are
required to be provided for running a full-fledged institution or college are
provided. Such an establishment, in our opinion, although named as a study
centre, and despite the fact that the course of study and other study materials
are supplied by the University cannot be permitted to be established beyond the
territorial jurisdiction of the University. Nainital is outside the territorial
jurisdiction of the University.
In fact it is not situated in the State of U.P. and, thus, beyond the
provisions of the Act.
19. The submission of the learned counsel that the UGC Regulations 1985
provides for study centre of this nature cannot be countenanced. The UGC
Regulations being a subordinate legislation must be read with the principal
Act. The subordinate legislation will be ultra vires if it contravenes the
provisions of the principal Act. [See Vasu Dev Singh & Ors. v. Union of
India & Ors. 2006 (11) SCALE 108] A statutory authority, it is well known,
must act within the four-corners of the statute. A'fortiori it has to operate
within the boundaries of the territories within which it is to operate under
the statute. Such territorial jurisdiction of the University must be maintained
as otherwise a chaos would be created. If distance education of such a nature
is to be encouraged, the only course would be to suitably amend the provisions
of the Act.
20. We are not oblivious that in certain situations the territorial
jurisdiction in relation to a University may not be strictly enforced as was
done in the case of Sushanta Tagore & Ors. v Union of India and Others
[(2005) 3 SCC 16] but in the said matter, this Court was concerned with a
totally different situation.
21. We, thus, are of the opinion that in this case we need not go into the
other submissions raised by Ms. Aggarwal.
22. The study centres of the appellants being situated in Nainital, is
beyond the territorial jurisdiction of the respondent university. No writ of or
in the nature of mandamus as has been prayed for in the writ petition can be
issued.
23. For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly. No costs.
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