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2020 Supreme(Sikk) 45
THE HIGH COURT OF SIKKIM : GANGTOK
MEENAKSHI MADAN RAI, J.
Sikkim Manipal University - Petitioner
versus
Union of India and Others - Respondents
WP(C) No.65 of 2016
Decided On : 03-01-2020
For the Petitioner:Mr. Gopal Subramaniam and Mr. Nikhil Nayyar, Senior Advocates with Mr. T. R. Barfungpa, Mr. Pawan Bhushan, Mr. Dhananjay Baijal and Mr. Ugang Lepcha, Advocates.
For the Respondent:Mr. Karma Thinlay, Mr. A. Mariarputham, Senior Advocate with Mr. Thinlay Dorjee Bhutia, Dr. Doma T. Bhutia, with Mr. Thupden Youngda, Government Advocate and Ms. Pollin Rai
Headnote:
The Court held that the Public Notice dated 19.07.2016 and the communications dated 07.10.2016 and 01.11.2016 to the extent that they seek to prohibit Examination Centres/conduct examinations outside the State where the University is situated is violative of Article 14, Article 19(1)(g) and Article 21 of the Constitution and whether the requirement under Regulation 13(7) of the University Grants Commission (Open and Distance Learning) Regulations, 2017, pertaining to establishment of “Examination Centre” within the territorial jurisdiction of the concerned institution also violates of the same provisions of the Constitution.
Fact of the Case:
The Petitioner University, Sikkim Manipal University, challenged the Public Notice dated 19.07.2016, issued by the Respondent No.2, University Grants Commission (UGC), inter alia prohibiting Universities/Institutions from conducting examinations for their Open and Distance Learning (ODL) programmes outside the territorial jurisdiction of the University's location, followed by communications dated 07.10.2016 and 01.11.2016 reiterating the aforestated prohibition including setting up of Examination Centres. Claiming that the Notices are ultra vires the powers of the Respondent No.2 under the parent Statute and have no force of law besides being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India, the Petitioner University sought the following reliefs; a) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction to declare and quash the Public Notice dated 19.07.2016 as violative of Articles 14, 19(1)(g) and 21 of the Constitution; b) Issue a Writ of Certiorari, or any appropriate Writ, Order or Direction to quash the communications dated 7.10.2016 and 01.11.2016 issued pursuant to Public Notice dated 19.07.2016 to the extent that they seek to prohibit examination centres/conduct examination outside the State where the University is situated; [b1] Issue a Writ of Declaration, or any other appropriate Writ, Order or Direction to declare and quash the requirement to establish “Examination Centres? within territorial jurisdiction of the Petitioner University as provided under sub-clause (7) of Regulation 13 of the UGC (Open and Distance Learning) Regulations, 2017 as unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution; [b2] Issue a Writ of Declaration, or any other appropriate Writ, Order or Direction to declare and quash the applicability of Policy on Territorial Jurisdiction of Universities provided as under sub-clause (ii) of Regulation 3(1) read with Annexure IV of the UGC (Open and Distance Learning) Regulations, 2017 with reference to establishment of Examination Centres as under sub-clause (7) of Regulation 13 of the UGC (Open and Distance Learning) Regulations, 2017 as unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution; c) pass any such other order or direction as this Hon?ble Court may deem fit in the facts and circumstances of the case;
Finding of the Court:
The Court held that the Public Notice dated 19.07.2016 and the communications dated 07.10.2016 and 01.11.2016 are not violative of Article 14, Article 19(1)(g) and Article 21 of the Constitution and that the requirement under Regulation 13(7) of the University Grants Commission (Open and Distance Learning) Regulations, 2017, pertaining to establishment of “Examination Centre” within the territorial jurisdiction of the concerned institution also does not violate the same provisions of the Constitution.
Issues: 1. Whether the Public Notice dated 19.07.2016 and the communications dated 07.10.2016 and 01.11.2016 to the extent that they seek to prohibit Examination Centres/conduct examinations outside the State where the University is situated is violative of Article 14, Article 19(1)(g) and Article 21 of the Constitution? 2. Whether the requirement under Regulation 13(7) of the University Grants Commission (Open and Distance Learning) Regulations, 2017, pertaining to establishment of “Examination Centre” within the territorial jurisdiction of the concerned institution also violates of the same provisions of the Constitution?
Ratio Decidendi: 1. The Court held that the Public Notice dated 19.07.2016 and the communications dated 07.10.2016 and 01.11.2016 are not violative of Article 14, Article 19(1)(g) and Article 21 of the Constitution because: * The impugned Notifications and Regulations are consistent with the constitutional provisions and the limitations contained therein as also the provisions of the UGC Act, 1956, Prof. Madhava Menon Committee Report, Presidential Directive dated 29.12.2012 issued under Section 20 of the UGC Act 1956 and the Judgment of this Court in WP(C) No.04 of 2013 dated 26.06.2015. * The Petitioner University has been established for improving education activities in the State, therefore the requirement for the University to conduct examinations within the State consistent with Article 245 of the Constitution. * The Policy Directive of the Government of India dated 29.12.2012 has been found to be a Directive under Section 20 of the UGC Act and binding on all parties including State Government Universities and includes keeping in view the territorial restrictions. * The Madhava Menon Committee Report observed that the Study Centres are to be identified within the territorial limits of the State and not beyond. * The Examination Regulations of the Directorate of Distance Education of the Petitioner University have not been denied by the Petitioner but has been sought to be explained away as limited to certain subjects. * The plea of the Petitioner University that holding examinations within the State will cause hardship to the students is not substantiated by any student claims. 2. The Court held that the requirement under Regulation 13(7) of the University Grants Commission (Open and Distance Learning) Regulations, 2017, pertaining to establishment of “Examination Centre” within the territorial jurisdiction of the concerned institution also does not violate the same provisions of the Constitution because: * The distinction between a formal system and an informal system is in the mode and manner in which education is imparted, not that examination is to be held at the place of the choice of the student or a place of their convenience.
Final Decision: The Writ Petition was dismissed and disposed of.
JUDGMENT :
Meenakshi Madan Rai, J.
1. This Writ Petition pivots around the vires of the impugned Public Notice dated 19.07.2016, issued by the Respondent No.2, inter alia prohibiting Universities/Institutions from conducting examinations for their Open and Distance Learning Programmes outside the territorial jurisdiction of the University's location, followed by communications dated 07.10.2016 and 01.11.2016 reiterating the aforestated prohibition including setting up of Examination Centres. Claiming that the Notices are ultra vires the powers of the Respondent No.2 under the parent Statute and have no force of law besides being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India, the Petitioner University seeks the following reliefs;
“a) Issue a Writ of Certiorari, or any other appropriate Writ, Order or Direction to declare and quash the Public Notice dated 19.07.2016 as violative of Articles 14, 19(1)(g) and 21 of the Constitution;
b) Issue a Writ of Certiorari, or any appropriate Writ, Order or Direction to quash the communications dated 7.10.2016 and 01.11.2016 issued pursuant to Public Notice dated 19.07.2016 to the extent that they seek to prohibit examination centres/conduct examination outside the State where the University is situated; [sic]
[b1] Issue a Writ of Declaration, or any other appropriate Writ, Order or Direction to declare and quash the requirement to establish „Examination Centres? within territorial jurisdiction of the Petitioner University as provided under sub-clause (7) of Regulation 13 of the UGC (Open and Distance Learning) Regulations, 2017 as unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution; [sic]
[b2] Issue a Writ of Declaration, or any other appropriate Writ, Order or Direction to declare and quash the applicability of Policy on Territorial Jurisdiction of Universities provided as under sub-clause (ii) of Regulation 3(1) read with Annexure IV of the UGC (Open and Distance Learning) Regulations, 2017 with reference to establishment of Examination Centres as under sub-clause (7) of Regulation 13 of the UGC (Open and Distance Learning) Regulations, 2017 as unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution;
c) pass any such other order or direction as this Hon?ble Court may deem fit in the facts and circumstances of the case;”
2. The Petitioner University was established in 1995 by an Act of the State legislature of Sikkim. The Petitioner's case is that their University began offering distance education programs with permission from the Respondent No.2 from the year 2001, and was subsequently granted recognition by the Distance Education Council (“DEC”), Indira Gandhi National Open University (“IGNOU”) in October, 2009. That, the University Grants Commission (Open and Distance Learning) Regulations, 2017 (“2017 ODL Regulations”) in exercise of powers conferred under Section 26 of the University Grants Commission Act, 1956 (“UGC Act, 1956”) has incorporated and codified the restrictions spelt out in the Public Notice and communications supra vide Regulation 13 of the 2017 ODL Regulations which have assumed a statutory character from 23.06.2017. The Policy of the Respondent No.2 pertaining to territorial jurisdiction was challenged by the Petitioner University in Writ Petition No.4 of 2013 and by its decision dated 26.06.2015 a Division Bench of this Court upheld the said Policy. By a Judgment dated 29.06.2015 in WP(C) No.08 of 2015 this Court while reiterating the Judgment dated 26.06.2015, protected certain categories of the Petitioner students who had pursued the distance education program. Pursuant to the decision of this Court in WP(C) No.04 of 2013, the Petitioner University closed down its Study Centres that were operating outside the State of Sikkim duly informing the Respondent No.2, but no undertaking was sought in relation to conducting of examinations within the State of Sikkim only and previously no s
