Rep. by Registrar Vs. Secy. To Govt. Infn & Toursm Dept & Ors.  INSC
407 (25 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4173 OF 2008 ANNAMALAI
UNIVERSITY REP. BY REGISTRAR ... APPELLANT VERSUS SECY. TO GOVT. INFN. &
CIVIL APPEAL NOS. 4189-4191 OF 2008 N. RAMESH ...APPELLANT VERSUS
S.B. Sinha, J.
and application of the University Grants Commission (the minimum standards of
instructions for the grant of the first degree through non-formal/distance
education in the faculties of Arts, Humanities, Fine Arts, Music, Social
Sciences, Commerce and Sciences) Regulations, 1985 (for short, "1985
Regulations") framed by the University Grants Commission (for short,
"UGC") in exercise of its powers conferred by clause (f) of
sub-section (1) of Section 26 of the University Grants Commission Act, 1956
(for short, "the UGC Act") vis-`-vis the provisions of the Indira
Gandhi National Open University Act, 1985 (for short, "the Open University
Act") is in question in these appeals. They arise out of a common judgment
and order dated 4.2.2008 passed by a Division Bench of the High Court of
Judicature at Madras in Writ Appeal Nos. 1221 of 2005 and 82 of 2006 and Writ
Petition No. 36307 of 2004.
N. Ramesh (Ramesh) and Sibi Madan Gabriel (Gabriel) were candidates for appointment
to the post of Principal in Film and Television Institute (for short, "the
Institute") of Tamil Nadu. Gabriel was appointed temporarily as a
`Lecturer in Acting' in the Institute on or about 26.5.1982. His services were
regularized with retrospective effect from the date of his joining by an order
dated 20.2.1992. He was subsequently promoted as Head of Section by G.O.Ms. No.
236 dated 17.8.1993. The 3 next avenue of promotion from the post of Head of
Section is the post of Principal in the Institute. In the year 2000, Ramesh was
given the additional charge to the post of Principal. Gabriel filed an Original
Application before the Tamil Nadu Administrative Tribunal (for short, "the
Tribunal"), which was marked as O.A. No. 5275 of 2000 questioning the
legality of the said appointment on the ground that Ramesh did not have the
requisite essential educational qualification for the post of Principal.
Tribunal, by its judgment and order dated 14.8.2000, directed the State to
consider the objections of Gabriel having regard to the qualifications
prescribed for the said post vis-`-vis those possessed by Ramesh. The challenge
to the qualification of Ramesh was that he did not possess a basic graduation
degree and, thus, the post-graduation degree conferred on him by appellant -
University is invalid in law. At that stage, the State appointed one Mr. K.
Loganathan, which was challenged by Ramesh by way of O.A. No. 2085 of 2003
before the Tribunal. Said application was dismissed by the Tribunal by reason
of an order dated 5.1.2004. Ramesh challenged the said order of the Tribunal by
filing a writ petition marked as Writ Petition No. 841 of 2004, which had
become infructuous as after retirement of said Mr. K. Loganathan, Ramesh was 4
appointed as the Principal by order dated 6.12.2004. Gabriel challenged the
said appointment of Ramesh by filing Writ Petition No. 36307 of 2004.
during the pendency of the said writ petition, Gabriel filed W.M.P. No. 43649
of 2004 for stay, which was granted. Ramesh filed W.V.M.P. No. 2428 of 2004 for
vacating the stay which was rejected by the learned single judge by order dated
21.6.2005. Writ appeals were preferred thereagainst by Ramesh as also State
Government and the Director of Information and Public Relation, which were
marked as Writ Appeal No. 1221 of 2005 and Writ Appeal No. 82 of 2006. By
reason of judgment and order dated 14.2.2006, while allowing the writ appeals,
writ petition preferred by Gabriel was dismissed by the Division Bench of the
the said decision of the Division Bench of the High Court had been challenged
in this Court by way of Civil Appeal No. 3178 of 2007, which by reason of a
judgment and order dated 20.7.2007 was disposed of by remanding the matter to
the High Court for fresh consideration observing that UGC as well as appellant
- University should be impleaded as parties in the writ petition.
the post of Principal in the Institute is governed by Rules made under the
proviso appended to Article 309 of the Constitution 5 of India. Rule 4 lays
down the qualifications for the said post, which reads as under:
Method of Recruitment
Qualification Promotion i) a degree in Science or Arts of any recognized
University ii) A diploma in any branch of Film Technology awarded by any
recognized Institution in India, and iii) Service as Head of Section in any
branch of Film Technology in the Government Institute of Film Technology,
Madras for not less than five years.
Transfer i) a degree in Science or Arts of any recognized University ii) A
diploma in any branch of Film Technology awarded by any recognized Institute in
India, and iii) Experience for a period of not less than ten years in film
Technology, of which at least five years shall be in teaching in a Film
Ramesh holds a diploma in Film Technology. He also has the requisite experience
of five years as Head of Section. He, however, has obtained M.A. Degree in Open
University System (OUS) in an examination held by the appellant - University.
Division Bench of the High Court by reason of the impugned judgment allowed the
writ petition and disposed of the writ appeals pending before it holding that
Ramesh was not eligible to be considered for the post of Principal as the M.A.
Degree obtained by him through OUS, without there being a first (Bachelor's)
degree, was not a valid one. Consequently, 7 the State was directed to take
steps to fill up the post of Principal in accordance with law.
thereby and dissatisfied therewith, the University as also Ramesh are before
K. Parasaran, learned Senior Counsel appearing on behalf of the appellant -
University would submit:
i. The system of
imparting education between a conventional University and an Open University
being different and being governed by the UGC Act and the Open University Act
respectively, the High Court committed a serious error in passing the impugned
framed by the UGC both providing for the eligibility to seek admission to the
Masters' degree as also information required to be furnished thereabout by the
State Universities to the UGC, the later must be held to have relaxed the
conditions as no direction in that behalf has been communicated to the
University. In any event, as Distance Education Council (DEC) of IGNOU, 8
being an authority constituted under Statute 28 of the Open University Act,
having granted post-facto approval to the courses of studies of the University
by a letter dated 21.7.2008 this Court should set aside the impugned judgment.
iii. In view of the
decision of this Court in Guru Nanak Dev University vs. Sanjay Kumar Katwal
& Anr. reported in 2008 (13) SCALE 760, the decision of the High Court has
been rendered erroneous as therein Master's degree under the OUS by the
appellant - University has been held to be valid stating that although one
University is entitled not to recognize the said degree as an equivalent to the
qualification it may have prescribed for eligibility to a higher course.
framed by UGC in any event being in conflict with the Open University Act must
be held to be ultra vires the same particularly in view of the fact that
sub-Section (2) of Section 5 of the Open University Act provides for a
non-obstante clause. In any event, Open University Act being a later enactment
and both statutes 9 having been passed by the Parliament, the provisions of
Open University Act would prevail over the UGC Act.
v. In any view of the
matter as from 1995 till 2005 several persons have received degrees issued by
the University and if they are disqualified at this stage, a large number of
persons would suffer irreparable injury, this Court should issue appropriate
directions in this behalf.
R.V. Kameshwaran, learned counsel appearing on behalf of the appellant - Ramesh
i. Having regard to
the provisions of the UGC Act and in particular Section 27 thereof providing
for delegation of power to the authority, and as a Notification dated 1.3.1995
has been issued directing that the degrees issued by the Universities would
stand automatically recognized for the purpose of employment to posts and
services under the Central Government subject to approval of the DEC, IGNOU,
the High Court must be held to have committed a serious error in holding
ii. From various
correspondences, it would appear that the UGC Regulations were amended only in
the year 2003 and the Master's degree awarded upto 30.6.1989 were treated to be
iii. Many established
Universities like that of Annamalai University across the country, having
conducted such courses under OUS and such degrees having been accepted by
Public Service Commission, the High Court's judgment even in equity should be
G.E. Vahanwati, learned Solicitor General who appeared at the request of the
Court would contend that from the Statement of Objects and Reasons of Open
University Act it is evident that the Parliament made a distinction between
formal and non-formal education and UGC Act being concerned with formal
education, IGNOU and particularly the DEC had the requisite jurisdiction to lay
down syllabus as also duration of such courses.
Amitesh Kumar, learned counsel appearing on behalf of the UGC would urge:
i. Regulations framed
by the UGC being statutory in nature and in any event the constitutionality of
the said Regulations having not been challenged, the High Court's judgment must
be held to be wholly sustainable.
ii. In view of the
fact that the Vice-Chancellor and the Chairman DEC of IGNOU having accepted in
its letter dated 5.5.2004 that the UGC Regulations shall prevail, the
contentions raised on behalf of the appellants must be held to be wholly
iii. As Regulations
framed by the UGC are required to be laid before the Houses of the Parliament
in terms of Section 28 of the Act and furthermore the Ministry of Human
Resource Development being a Nodal Ministry of both UGC as also IGNOU, the
Regulations having been made at its instance, cannot be said to be subservient
to the provisions of the Open University Act.
iv. UGC having the
requisite jurisdiction inter alia to lay down the minimum standard, Regulations
framed by it are binding on all Universities and, thus, it would not be correct
to contend that 12 Open University Act shall prevail over the regulations
framed by the UGC.
B.D. Sharma, learned counsel appearing on behalf of the writ petitioners -
respondents submitted that the purported ex post facto recognition of the M.A.
degrees granted by the DEC is wholly without jurisdiction. There being no
conflict between the UGC Act and the Open University Act in respect of laying
minimum standard, the question declaring the regulations ultra vires of the
Open University Act does not arise.
66 of List I of the Seventh Schedule to the Constitution of India reads thus:
Co-ordination and determination of standards in institutions for higher
education or research and scientific and technical institutions."
`Education' is also
in the Concurrent List; Entry 25 whereof reads as under:
including technical education, medical education and universities, subject to
the provisions of entries 63, 64, 65 and 66 of List I;
technical training of labour."
13 The Central
Government as also the State Governments in exercise of their legislative
competence in terms of Entry 25 are entitled to make legislations. Pursuant
thereto, and in furtherance thereof, Universities like IGNOU had been enacted
by the Parliament again in exercise of its legislative competence in terms of
Entry 25. UGC Act, on the other hand, comes within the purview of Entry 66 of
List I of the Seventh Schedule to the Constitution of India. It was enacted to
make provision for the co- ordination and determination of standards in
Universities and for that purpose, to establish a UGC.
UGC was established
by the Central Government in terms of Section 4 of the UGC Act. Powers and
functions of the Commission have been laid down in Chapter III thereof. Section
12 provides for functions of the Commission; some of the relevant provisions
"12. It shall be
the general duty of the Commission to take, in consultation with the
Universities or other bodies concerned, all such steps as it may think fit for
the promotion and co- ordination of University education and for the
determination and maintenance of standards of teaching, examination and
research in Universities, and for the purpose of performing its functions under
this Act, the Commission may-- 14 ... ... ...
(d) recommend to any
University the measures necessary for the improvement of University education
and advise the University upon the action to be taken for the purpose of
implementing such recommendation;
... ... ....
(i) require a
University to furnish it with such information as may be needed relating to the
financial position of the University or the studies in the various branches of
learning undertaken in that University, together with all the rules and
regulations relating to the standards of teaching and examination in that
University respecting each of such branches of learning;"
Section 12A provides
for regulation of fees and prohibition of donations in certain cases. Clause
(c) whereof reads as under:
"prosecution" in relation to a course of study, includes promotion
from one part or stage of the course of study to another part or stage of the
course of study;"
Section 22 provides
for right to confer degrees. Sub-Section (1) and reads as under:
15 "(1) The
right of conferring or granting degrees shall be exercised only by a University
established or incorporated by or under a Central Act, a Provincial Act or a
State Act or an institution deemed to be a University under section 3 or an institution
specially empowered by an Act of Parliament to confer or grant degrees."
The Commission is
empowered to make regulations by notification in terms of Section 26, inter
alia, for the following purposes:
defining the qualifications that should ordinarily be required of any person to
be appointed to the teaching staff of the University, having regard to the
branch of education in which he is expected to give instructions;
(f) defining the
minimum standards of instruction for the grant of any degree by any University;
(g) regulating the
maintenance of standards and the co-ordination of work or facilities in
(h) regulating the
establishment of institutions referred to in clause (ccc) of section 12 and
other matters relating to such institutions;"
16 Section 28
mandates that every rules and regulations must be placed before each House of
University Act was enacted to establish and incorporate an open University at
the national level for the introduction and promotion of open university and
distance education systems in the educational pattern of the country and for
the co-ordination and determination of standards in such systems.
We may also notice
the Statement of Objects and Reasons of the said Act, which reads as under:
" Despite the
tremendous expansion of the formal system of higher education since
independence, the pressure on the system is continuously increasing. Indeed,
the system has not been able to provide an effective means to equalize
educational opportunities. The rigidity of the system requiring, among others,
attendance in classrooms have been a disincentive to many learners. Moreover
the combinations of subjects are inflexible and are often not relevant to the
needs of the learners. This has resulted in a pronounced mismatch between the
contents of most programmes and the needs of the development sectors.
The experience of
several developed or developing countries indicate that distance education
programmes can provide an alternative system that will be cost-effective and
relevant, while at the same time ensuring effective equalization of
opportunities. Though a diversity 17 of means, including the utilization of
modern communication technology, the distance education can provide more
flexible and open learning programmes that will suit the needs of various
categories of learners, especially the weaker sections of society. The
introduction and promotion of distance education in the educational system of
the country is, therefore, of great significance."
We may also notice
some provisions of the Open University Act.
"distance education system" means the system of imparting education
through any means of communication, such as broadcasting, telecasting,
correspondence courses, seminars, contact programmes or the combination of any
two or more of such means;
xxx xxx xxx
3. Establishment and
incorporation of the University.- (1) There shall be established a University
by the name of "the Indira Gandhi National Open University".
xxx xxx xxx
4. The objects of the
University.- The objects of the University shall be to advance and disseminate
learning and knowledge by a diversity of means, including the use of any
communication technology, to provide opportunities for higher education to a
larger segment of the population and to promote the educational well being of
the community generally, to encourage the Open University and distance
education systems in the educational pattern of the country and to co- 18
ordinate and determine the standards in such systems, and the University shall,
in organizing its activities, have due regard to the objects specified in the
5. Powers of the
University.- (1) The University shall have the following powers, namely:- ...
(iii) to hold
examinations and confer degrees, diplomas, certificates or other academic
distinctions or recognitions on persons who have pursued a course of study or
conducted research in the manner laid down by the Statutes and Ordinances;
xxx xxx xxx (v) to
determine the manner in which distance education in relation to the academic
programmes of the University may be organised;
xxx xxx xxx (xiii) to
recognise examinations of, or periods of study (whether in full or part) at,
other universities, institutions or other places of higher learning as
equivalent to examinations or periods of study in the University, and to
withdraw such recognition at any time;
xxx xxx xxx 19
(xxiv) to determine standards and to specify conditions for the admission of
students to courses of study of the University which may include examination,
evaluation and any other method of testing;
xxx xxx xxx xxx xxx
xxx 5(2) Notwithstanding anything contained in any other law for the time being
in force, but without prejudice to the provisions of sub-section. (1), it shall
be the duty of the University to take all such steps as it may deem fit for the
promotion of the open university and distance education systems and for the
determination of standards of teaching, evaluation and research in such
systems, and for the purpose of performing this function, the University shall
have such powers, including the power to allocate and disburse grants to
Colleges, whether admitted to its privileges or not, or to any other university
or institution of higher learning, as may be specified by the Statutes."
In terms of Section 6
thereof, IGNOU has jurisdiction over the whole of India. Section 16 lays down
the Authorities of the IGNOU, clause (7) whereof reads as under:
"(7) Such other
authorities as may be declared by the Statutes to be the authorities of the
20 Pursuant to or in
furtherance of the said power read with Statute 28 and 28(2A), DEC had been
constituted. DEC has been declared as the authority of the IGNOU. Whereas
Section 25 provides for the statute making power, Section 27 provides for the
Ordinances making power. It has, however, been stated at the Bar that the IGNOU
has neither made any regulations nor any statutes.
The First Schedule
appended to the Open University Act provides for the objects of IGNOU, the
relevant provisions whereof read as under:
to the improvement of the educational system in India by providing a non-
formal channel complementary to the formal system and encouraging transfer of
credits and exchange of teaching staff by making wide use of texts and other
software developed by the University;
2. The University
shall strive to fulfil the above objects by a diversity of means of distance
and continuing education, and shall function in co-operation with the existing
Universities and Institutions of higher learning and make full use of the
latest scientific knowledge and new educational technology to offer a high
quality of education which matches contemporary needs."
UGC in exercise of the powers conferred upon it by clause (f) of sub-section
(1) of Section 26 of the UGC Act, made the 1985 21 regulations. A notification
in this behalf was published by the UGC on 25.11.1985. It, however, was given
effect from 1.1.1986.
We may notice some of
the provisions of 1985 Regulations.
Admission/Students:-(1) No student shall be eligible for admission to the 1st
Degree Course through non-formal/distance education unless he has successfully
completed 12 years schooling through an examination conducted by a
Board/University. In case there is no previous academic record, he shall be
eligible for admission if he has passed an entrance test conducted by the
University provided that he is not below the age of 21 years on July 1 of the
year of admission.
(2) No student shall
be eligible for the award of the first degree unless he has successfully
completed a three year course; this degree may be called the B.A./B.Sc./B.Com.
(General/ Honours/ Special) degree as the case may be:
Provided that no
student shall be eligible to seek admission to the Master's Course in these
faculties, who has not successfully pursued the first Degree Course of three
that, as a transistory measure where the universities are unable to change over
to a three year degree course, they may award a B.A./B.Sc./B.Com. (Pass) degree
on successful completion of two years course, but that no student of this
stream shall be eligible for admission to the Master's course unless he has
undergone a further one year bridge course and passed the same. The three year
degree course after 10+2 stage should in no case be termed as B.A./B.Sc./B.Com.
Every University providing instruction through non-formal/distance education
shall furnish to the University Grants Commission information relating to the
observance of these Regulations in the form prescribed for the purpose. The
information shall be supplied to the University Grants Commission within 60 days
of the close of the academic Year.
7. The University
Grants Commission shall have the right to grant relaxation to a university in
regard to the date of implementation or for admission to the first or second
degree courses or to give exemption for a specified period in regard to other
clauses in the regulations on the merit of each case."
Regulations 6 and 7
were renumbered as Regulations 7 and 8 at a later stage.
Ministry of Human Resource Development (Department of Education) is the Nodal
Ministry. The Central Government, therefore, was aware of the provisions of
both the Open University Act as also the 1985 Regulations.
The Ministry of Human
Resource Development issued a communication on or about 25.11.1988 stating that
the degrees/diplomas awarded by the Universities established inter alia by a
State Legislature will 23 stand automatically recognized for the purpose of
employment under the Central Government
appellant - University established a separate Directorate for Distance
Education Programme offering different courses of studies. It, however, started
functioning in the year 1991. Offering courses of studies under the OUS is said
to be in line with the one followed by the IGNOU in terms whereof anyone who had
completed Plus Two (+2) or undergone the preparatory course and passed the
written test become eligible to join the undergraduate programme of his or her
choice. Similarly, those who had undergone the preparatory course and written
test and was of 21 years of age and above became eligible for undertaking the
The said programme is
said to have been introduced on an experimental basis. Similar programmes
offering courses of undergraduate and post- graduate levels through the OUS
were also adopted and followed by various other Universities in India. It is
stated that UGC was being apprised of the activities of the appellant -
University in regard to instructions/courses offered by it through the
non-formal/distance education including the OUS in terms of Regulation 6 of the
1985 Regulations. The Government of Tamil Nadu allegedly at the request of the
appellant - University and on the basis of the recommendations made by a
Committee constituted by them for 24 the aforementioned purpose directed that
the bachelor and postgraduate degrees and diplomas awarded by the Open
Universities be treated on par with those awarded under regular stream for any
appointment to the post in public service.
the fact that the appellant - University had been granting postgraduate degrees
to the candidates concerned although they had not completed three years' course
in violation of the Regulation 2 of the 1985 Regulations came to the notice of
the UGC as also IGNOU officials.
A meeting was held in
March 2004. It was agreed in the said meeting that the admission to the
Masters' Degree Programme under the OUS without requiring the three years
graduate degree qualification be discontinued with effect from July, 2004 as
would appear from a letter issued by the IGNOU to the Vice-Chancellor of the
appellant - University, the relevant portion whereof reads as under:
"In the meeting,
both the undersigned as Chairman DEC and Chairman UGC had emphasized the need
to discontinue the Master's Degree Programme without requiring 3 years graduate
degree qualification under Open education stream, which is in practice in some
Universities of Tamil Nadu.
We drew your kind
attention to the UGC regulation 1985 regarding the minimum standard of
instructions for the grant of the first degree 25 through non-formal/distance
education dated 25th November, 1985 according to which no student shall be
eligible to seek admission to the Master's Degree Programme who has not
completed first degree course of three years duration. This clearly stipulates
that the practice of admitting students of Master's Degree Programme who have
not undergone 3 years undergraduate programme successfully is against the
provisions of the above regulation. In view of this, it was agreed in the meeting
of March 11, 2004 that new admission to the Master's Degree Programme under
open education scheme as prevailing in some Universities in Tamil Nadu should
be discontinued with effect from the forthcoming session starting from July
2004. I would feel grateful to receive your confirmation on this matter."
however, appears that the degrees obtained after 1.3.1995 upto 20.6.2007 have
been recognized by the DEC as would appear from a letter issued by the said DEC
dated 21.7.2008, which reads as under:
reference to your application requesting for post-facto recognition of Distance
Education Council for programmes offered through distance mode by Directorate
of Distance Education of your university.
In this connection,
we would like to inform you that based on the recommendation of the expert
committee that visited your university, the Chairman, Distance Education
Council has accorded post-facto approval to your university for programmes
offered through distance mode with effect from 1st March, 1995 to academic year
2006-2007. Prior to March 1995, there was no system for giving recognition to
correspondence courses or distance education programmes and therefore the issue
of post-facto approval for such courses during that period does not arise. The
certificates issued by the university stand automatically recognized if they
were approved by the relevant authorities of the university.
Further, we would
also like to inform that, it is the responsibility of the university to follow
the norms prescribed by the concerned regulatory bodies or seek their
recognition for professional/technical programme/s as per the requirements.
Getting approval of concerned statutory apex body for relevant programme/s will
be the sole responsibility of the university. The territorial jurisdiction for
offering distance education would be as per the Acts and Statutes of your
question which in the aforementioned situation arises for our consideration is
as to whether the DEC had the requisite jurisdiction to grant post-facto
approval in terms of its letter dated 21.7.2008.
determining the aforementioned question, we may take note of some
correspondences also as declared by the UGC in its counter affidavit.
The UGC in its letter
No.F.1-75/91 (CPP) dated 30.12.1991 to the Registrar of various Universities
regarding application of UGC Regulations 27 1985, informed them that for
admitting candidates in courses for which the First degree was the minimum
qualification. the universities may not insist upon the three years duration
for the first degree course in respect of candidates who had obtained their
First Degree prior to 1985.
Thereafter, UGC vide
its D.O. letter No. F.11-4/92 (CPP-II) dated 24.04.1996 informed the
Universities of its decision regarding the validity of one year degree course
(one-sitting) equivalent to three years regular course of the first degree. The
Commission communicated its decision on the said matter:
"1. According to
the UGC Regulations of minimum standards, both formal and non-formal degree
courses must be of three years duration.
2. The undergraduate
programme has been generally accepted as a three years programme in most of the
universities. However, it was noted that in some States, the Universities offer
a two- year degree course after 10+2. However, such students are not eligible
for admission to the Master's degree programme.
3. It was desired
that the UGC regulations of minimum standards for formal as well as non- formal
education be circulated to the universities for compliance.
4. It was decided
that the requirement for a three years degree course should also be notified.
5. No private
candidate should be permitted to appear for an examination."
It in the said letter
also asked the universities to ensure that the above mentioned decisions be
scrupulously followed by them.
In continuation of
the said office letter, the UGC, thereafter vide letter F.11-4/92 (CPP-II)
dated 14.03.1997 informed the Vice Chancellor's of the Universities as under.
"The degrees of
the candidates enrolled for the one time Bachelor's degree programme, upto the
year, 1995-96 may be treated as valid. The degree of the candidates declared
valid may be treated at par with other degrees of the same university for all
purposes including admission to higher degrees and employment".
considering the request and representations received from several candidates
regarding the validity of M.A./M.Sc./M.Com. degree (one sitting), the UGC vide
its letter No. F.1-30/96 (CPP-I) dated 1st February, 1998 informed the
registrars of various universities that:
may be allowed to enroll candidates for one sitting of M.A./M.Sc./M.Com.
from the academic
year beginning in 1998 29 onwards and the students already registered may be
allowed to complete their course by 30th June, 1999, and the degree awarded to
these candidates upto that period may be treated as valid".
UGC despite requests
and representations received from various persons reiterated its earlier
decision regarding the validity of M.A./M.Sc./M.Com. Degree (One Sitting) in
its letter No. F.1-30/96 (CPP- II) dated 23.07.1998 to the Registrar of the
considering a number of representations/complaints from various persons, the
U.G.C. vide its letter dated 30-06-1999 addressed to the universities
reiterated that the candidates who had completed their B.A.
under one sitting
during the year 1998-99 may be treated as valid. As per the letter, the said
degrees were to be treated valid for all purposes including admission to higher
degrees and for employment purposes. It also informed the universities that any
violation of the said direction would be severely dealt with.
The question as to
whether Regulation 2 is repugnant to the provisions of the Open University Act
must, therefore, be considered in the aforementioned context.
Act was enacted by the Parliament in exercise of its power under Entry 66 of
List I of the Seventh Schedule to the Constitution of India whereas Open
University Act was enacted by the Parliament in exercise of its power under
Entry 25 of List III thereof. The question of repugnancy of the provisions of
the said two Acts, therefore, does not arise. It is true that the statement of
objects and reasons of Open University Act shows that the formal system of
education had not been able to provide an effective means to equalize
educational opportunities. The system is rigid inter alia in respect of
attendance in classrooms. Combinations of subjects are also inflexible.
Was the alternative
system envisaged under the Open University Act was in substitution of the
formal system is the question. In our opinion, in the matter of ensuring the
standard of education, it is not. The distinction between a formal system and
informal system is in the mode and manner in which education is imparted. UGC
Act was enacted for effectuating co- ordination and determination of standards
in Universities. The purport and object for which it was enacted must be given
full effect. The provisions of the UGC Act are binding on all Universities
whether conventional or open.
Its powers are very
broad. Regulations framed by it in terms of clauses (e), (f), (g) and (h) of
sub-Section (1) of Section 26 are of wide amplitude. They apply equally to Open
Universities as also to formal conventional 31 universities. In the matter of
higher education, it is necessary to maintain minimum standards of
instructions. Such minimum standards of instructions are required to be defined
by UGC. The standards and the co- ordination of work or facilities in
universities must be maintained and for that purpose required to be regulated.
The powers of UGC
under Sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate
legislation as is well known when validly made becomes part of the Act. We have
noticed hereinbefore that the functions of the UGC are all pervasive in respect
of the matters specified in clause (d) of sub-section (1) of Section 12A and
clauses (a) and (c) of sub- section (2) thereof. Indisputably, as has been
contended by the learned counsel for the appellant as also the learned
Solicitor General that Open University Act was enacted to achieve a specific
object. It opens new vistas for imparting education in a novel manner. Students
do not have to attend classes regularly. They have wide options with regard to
the choice of subjects but the same, in our opinion, would not mean that
despite a Parliamentary Act having been enacted to give effect to the
constitutional mandate contained in Entry 66 of List I of the Seventh Schedule
to the Constitution of India, activities and functions of the private
universities and open universities would be wholly unregulated.
32 It has not been
denied or disputed before us that in the matter of laying down qualification of
the teachers, running of the University and the matters provided for under the
UGC Act are applicable and binding on all concerned. Regulations framed, as
noticed hereinbefore, clearly aimed at the Open Universities. When the
Regulations are part of the statute, it is difficult to comrehend as to how the
same which operate in a different field would be ultra vires the Parliamentary
Act. IGNOU has not made any regulation; it has not made any ordinance. It is
guided by the Regulations framed by the UGC. The validity of the provisions of
the Regulations has not been questioned either by IGNOU or by the appellant -
From a letter dated
5.5.2004 issued by Mr. H.P. Dikshit, who was not only the Vice-Chancellor but
also the Chairman of the DEC of IGNOU it is evident that the appellant -
University has violated the mandatory provisions of the Regulations.
amplitude of the provisions of the UGC Act vis-`-vis the Universities
constituted under the State Universities Act which would include within its
purview a University made by the Parliament also is now no longer a res
33 In Prem Chand
Jain Anr. vs. R.K. Chhabra [(1984) 2 SCR 883], this court held:
position is well-settled that the entries incorporated in the lists covered by
Schedule VII are not powers of legislation but 'fields' of legislation.
Harakchand v. Union of India [(1970) 1 S.C.R. 479 at p.489]. In State of Bihar
S.C.R. 889 this Court has indicated that such entries are mere legislative
heads and are of an enabling character. This Court, has clearly ruled that the
language of the entries should be given the widest scope or amplitude.
C.I.T.  2 S.C.R. 129 at p. 836. Each general word has been asked to be
extended to all ancillary or subsidiary matters which can fairly and reasonably
See State of Madras
v. Gannon Dunkerley  S.C.R. 379 at p. 391. It has also been held by this
Court in The Check Post Officer and Ors. v. K.P.
Abdulla Bros [(1971)
2 S.C.R. 817] that an entry confers power upon the legislature to legislate for
matters ancillary or incidental, including provision for avoiding the law. As
long as the legislation is within the permissible field in pith and substance,
objection would not be entertained merely on the ground that while enacting
legislation, provision has been made for a matter which though germane for the
purpose for which competent legislation is made it covers an aspect beyond it.
In a series of decisions this Court has opined that if an enactment
substantially falls within the powers expressly conferred by the Constitution
upon the legislature enacting it, it cannot be held to be invalid merely
because it incidentally encroaches on matters assigned to another
34 In University of
Delhi vs. Raj Singh & ors. [1994 Suppl (3) SCC 516], this Court held:
reason of entry 66, Parliament was invested with the power to legislate on
"coordination and determination of standards in institutions for higher
education or reach and scientific and technical institutions." Item 25 of
List III conferred power upon Parliament and the State legislatures to enact
legislation with respect to "vocational and technical training on
labour". A six-Judge bench of this Court observed that the validity of
State legislation on the subjects of University education and education in
technical and scientific institutions falling outside Entry 64 of List I as it
then read (that is to say, institutions for scientific or technical education
other than those financed by the Government of India wholly or in part and
declared by Parliament by law to be institutions of national importance) had to
be judged having regard to whether it impinged on the field reserved for the
Union under Entry 66. In other words, the validity of the State legislation
depended upon whether it prejudicially affected the coordination and
determination of standards. It did not depend upon the actual existence of
union legislation in respect of coordination and determination of standards
which had, in any event, paramount importance by virtue of the first part of
In State of T.N.
& Anr. vs. Adhiyaman Educational & Research Institute & ors.
[(1995) 4 SCC 104], this Court laid down the law in the following terms:
35 "41. What
emerges from the above discussion is as follows:
(i) The expression
"coordination" used in Entry 66 of the Union List of the Seventh
Schedule to the Constitution does not merely mean evaluation.
harmonisation with a view to forge a uniform pattern for a concerted action
according to a certain design, scheme or plan of development.
includes action not only for removal of disparities in standards but also for
preventing the occurrence of such disparities. It would, therefore, also
include power to do all things which are necessary to prevent what would make
"coordination" either impossible or difficult. This power is absolute
and unconditional and in the absence of any valid compelling reasons, it must
be given its full effect according to its plain and express intention.
(ii) To the extent
that the State legislation is in conflict with the Central legislation though
the former is purported to have been made under Entry 25 of the Concurrent List
but in effect encroaches upon legislation including subordinate legislation
made by the center under Entry 25 of the Concurrent List or to give effect to
Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a
conflict between the two legislations, unless the State legislation is saved by
the provisions of the main part of Clause (2) of Article 254, the State
legislation being repugnant to the Central legislation, the same would be
(iv) Whether the
State law encroaches upon Entry 66 of the Union List or is repugnant to the 36
law made by the center under Entry 25 of the Concurrent List, will have to be
determined by the examination of the two laws and will depend upon the facts of
(v) When there are
more applicants than the available situations/seats, the State authority is not
prevented from laying down higher standards or qualifications than those laid
down by the center or the Central authority to short-list the applicants.
When the State
authority does so, it does not encroach upon Entry 66 of the Union List or make
a law which is repugnant to the Central law.
(vi) However, when
the situations/ seats are available and the State authorities deny an applicant
the same on the ground that the applicant is not qualified according to its
standards or qualifications, as the case may be, although the applicant
satisfies the standards or qualifications laid down by the Central law, they
act unconstitutionally. So also when the State authorities derecognise or
disaffiliate an institution for not satisfying the standards or requirement
laid down by them, although it satisfied the norms and requirements laid down
by the central authority, the State authorities act illegally."
In State of A.P. vs.
K. Purushotham Reddy & ors. [(2003) 9 SCC 564], this Court held:
conflict in legislative competence of the Parliament and the State Legislatures
having regard to Article 246 of the Constitution of India must be viewed in the
light of the decisions of this Court which in no uncertain terms state that
each 37 Entry has to be interpreted in a broad manner.
parliamentary legislation as also the State legislation must be considered in
such a manner so as to uphold both of them and only in a case where it is found
that both cannot co-exist, the State Act may be declared ultra vires. Clause I
of Article 246 of the Constitution of India does not provide for the competence
of the Parliament or the State Legislatures as is ordinarily understood but
merely provide for the respective legislative fields.
Courts should proceed to construe a statute with a view to uphold its
It was observed:
"20. Entry 66 of
List I provides for coordination and determination of standards inter alia for
higher education. Entry 25 of List III deals with broader subject, namely,
education. On a conjoint reading of both the entries there cannot be any doubt
whatsoever that although the State has a wide legislative field to cover the
same is subject to entry 63, 64, 65 and 66 of List I. Once, thus, it is found
that any State Legislation does not entrench upon the legislative field set
apart by Entry 66, List I of the VII Schedule of the Constitution of India, the
State Act cannot be invalidated."
UGC Act, thus, having
been enacted by the Parliament in terms of Entry 66 of List I of the Seventh
Schedule to the Constitution of India would prevail over the Open University
respect, it is difficult to accept the submissions of learned Solicitor General
that two Acts operate in different fields, namely, conventional university and
Open University. UGC Act, indisputably, governs Open Universities also. In
fact, it has been accepted by IGNOU itself. It has also been accepted by the
appellant - University.
Reliance placed by
Mr. K. Parasaran on Guru Nanak Dev University (supra), in our opinion, is not
apposite. The question which arose for consideration therein was as to whether
Guru Nanak Dev University was entitled not to treat the degrees awarded by
IGNOU as it is not equivalent to three years degree course. Even therein it was
"...It is true
that normally a student cannot enroll for a Master's degree course unless he
has a basic Bachelor's degree in the chosen subject..."
attention of this Court was not drawn to the Regulations which are imperative
in character. The question, as noticed hereinbefore, before this Court therein
was the question of equivalence. It has been noticed that the appellant -
University did not wish to treat correspondence courses and distance education
courses as being the same.
It was stated to be a
matter of policy. Observations which have been made for holding the degrees
granted by appellant - University as valid must be 39 considered keeping in
view the question involved therein, namely, equivalence of degree and not any
other question. The questions which have been posted before us did not fall for
its consideration. The mandatory regulations were also not brought to its
notice. We, therefore, are of the opinion that Guru Nanak Dev University
(supra) has no application to the facts of the present case.
Court in Osmania University Teachers Association vs. State of Andhra Pradesh
& Anr. [(1987) 4 SCC 671], held as under:
"14. Entry 25
List III relating to education including technical education, medical education
and Universities has been made subject to the power of Parliament to legislate
under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List HI should,
therefore, be read together. Entry 66 gives power to Union to see that a
required standard of higher education in the country is maintained. The
standard of Higher Education including scientific and technical should not be
lowered at the hands of any particular State or States. Secondly, it is the
exclusive responsibility of the Central Government to co-ordinate and determine
the standards for higher education. That power includes the power to evaluate,
harmonise and secure proper relationship to any project of national importance.
It is needless to state that such a coordinate action in higher education with
proper standards, is of paramount importance to national progress. It is in
this national interest, the legislative field in regard to 'education' has
been 40 distributed between List I and List III of the Seventh Schedule.
15. The Parliament
has exclusive power to legislate with respect to matters included in List I.
The State has no
power at all in regard to such matters. If the State legislates on the subject
falling within List I that will be void, inoperative and unenforceable."
xxx xxx xxx
30. The Constitution
of India vests Parliament with exclusive authority in regard to co-ordination
and determination of standards in institutions for higher education. The
Parliament has enacted the U.G.C. Act for that purpose. The University Grants
Commission has, therefore, a greater role to play in shaping the academic life
of the country. It shall not falter or fail in its duty to maintain a high
standard in the Universities. Democracy depends for its very life on a high
standards of general, vocational and professional education.
learning with search for new knowledge with discipline all round must be
maintained at all costs. It is hoped that University Grants Commission will
duly discharge its responsibility to the Nation and play an increasing to role
bring about the needed transformation in the academic life of the
submission of Mr. K. Parasaran that as in compliance of the provisions
contained in Regulation 7, UGC had been provided with information in regard to
instructions through non-formal/distance education 41 relating to the
observance thereof by itself, in our opinion, would not satisfy the legal
requirement. It is one thing to say that informations have been furnished but
only because no action had been taken by UGC in that behalf, the same would not
mean that an illegality has been cured. The power of relaxation is a statutory
power. It can be exercised in a case of this nature.
Grant of relaxation
cannot be presumed by necessary implication only because UGC did not perform
its duties. Regulation 2 of the 1985 Regulations being imperative in character,
non compliance thereof would entail its consequences. The power of relaxation
conferred on UGC being in regard the date of implementation or for admission to
the first or second degree courses or to give exemption for a specified period
in regard to other clauses in the regulation on the merit of each case do not
lead to a conclusion that such relaxation can be granted automatically. The
fact that exemption is required to be considered on the merit of each case is
itself a pointer to show that grant of relaxation by necessary implication
cannot be inferred. If mandatory provisions of the statute have not been
complied with, the law will take its own course. The consequences will ensue.
Relaxation, in our
opinion, furthermore cannot be granted in regard to the basic things necessary
for conferment of a degree. When a mandatory provision of a statute has not
been complied with by an Administrative 42 Authority, it would be void. Such a
void order cannot be validated by inaction.
only point which survives for our consideration is as to whether the purported
post facto approval granted to the appellant - University of programmes offered
through distance modes is valid. DEC may be an authority under the Act, but its
orders ordinarily would only have a prospective effect. It having accepted in
its letter dated 5.5.2004 that the appellant - University had no jurisdiction
to confer such degrees, in our opinion, could not have validated an invalid
act. The degrees become
invalidated in terms
of the provisions of UGC ACT. When mandatory
been violated in terms of the provisions of one Act, an authority under another
Act could not have validated the same and that too with a retrospective effect.
The provisions of UGC Act are not in conflict with the provisions of Open
University Act. It is beyond any cavil of doubt that UGC Act shall prevail over
Open University Act.
has, however, been argued that Open University Act is a later Act.
But we have noticed
hereinbefore that the nodal ministry knew of the provisions of both the acts.
Regulations were framed almost at the same time after passing of the Open
University Act. Regulations were framed at a 43 later point of time.
Indisputably, the regulations embrace within its fold the matters covered under
Open University Act also. Submission of Mr. K. Parasaran that in terms of
sub-section (2) of Section 5 of the Open University Act a non obstante clause
has been created and, thus, would prevail over the earlier Act cannot also be
accepted. Apart from the fact that in this case repugnancy of two Acts is not
in question (in fact cannot be in question having been enacted by the
Parliament and a State in terms of the provisions of the concurrent list) the
non obstante clause contained in the Open University Act will be attracted
provided the statutes operate in the same field. UGC Act, as noticed
hereinbefore, operates in different field. It was enacted so as to make
provision for the co-ordination and determination of standards in Universities
and for that purpose, to establish a University Grants Commission. Its
directions being binding on IGNOU, sub-section (2) of Section 5 of the Open
University Act would not make the legal position otherwise. Reliance has been
placed upon a decision of this Court in Indian Express Newspapers Pvt. Ltd. vs.
Union of India [(985) 1 SCC 641), wherein it was opined that subordinate
legislation must yield to plenary legislation.
The same legal
principle has been stated recently in Bombay Dyeing & Mfg. Co. Ltd. (3) vs.
Bombay Environmental Action Group & ors.
[(2006) 3 SCC 434],
wherein this Court held:
"104. A policy
decision, as is well known, should not be lightly interfered with but it is
difficult to accept the submissions made on behalf of the learned Counsel
appearing on behalf of the Appellants that the courts cannot exercise their
power of judicial review at all. By reason of any legislation whether enacted
by the legislature or by way of subordinate legislation, the State gives effect
to its legislative policy. Such legislation, however, must not be ultra vires
legislation apart from being intra vires the Constitution, should not also be
ultra vires the parent Act under which it has been made.
legislation, it is trite, must be reasonable and in consonance with the
legislative policy as also give effect to the purport and object of the Act and
in good faith."
is no quarrel with the aforementioned proposition of law.
however, is not contrary to Open University Act and, thus, the said decisions
will have no application.
therefore, are of the opinion that the High Court is correct in rendering the
opinion in the manner it did in its judgment.
is also not a case as has been contended by Mr. K. Parasaran as also Mr. R.V.
Kameshwaran, that we should invoke our jurisdiction under Article 142 of the
Constitution of India. Writ petitioners - respondents has moved the High Court
at the earliest possible opportunity. It is a case of promotion. It is not a
case of fresh entry in services. Our judgment would not affect the service of
appellant Ramesh. He cannot only be promoted to the post of Principal of the
Institute. Even in the earlier round of litigation, the Madras High Court
"9. When all
these reasons have been given by the Government for appointing the appellant as
the Principal, we see no arbitrariness in the appointment and in particular,
when the stand of the University Grants Commission is clear that on the date
when the appellant obtained his M.A.
Degree, it was
possible for a person who did not have the basic degree to obtain the M.A.
degree, the order appointing the appellant as the principal cannot be
In view of a long
pending litigation, in our opinion, it will be unjust to deprive the writ
petitioner - respondent from his lawful demand. We, therefore, are of the
opinion that it is not a case where discretionary jurisdiction of this Court
under Article 142 can be invoked.
the aforementioned reasons, we find no merit in these appeals.
The appeals are
dismissed accordingly. No costs.
[Dr. Mukundakam Sharma]
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