Sh. Saurabh Shukla v. Indira Gandhi National Open University

15. The main thrust of the petitioner in the instant case is that the BCA programme degree obtained by him from SMU does not suffer from any legal infirmity and resultantly, he must not be denied an opportunity to pursue PGDMS course in respondent no.1-IGNOU on the pretext of having an unrecognized degree.

16. The limited questions that fall for consideration of this court are delineated hereunder as:-

[7]

I. Whether the rejection of the petitioner’s admission in PGDMS programme on the ground of his BCA programme degree being contrary to the extant regulations and settled position of law, is sustainable in the eyes of law?

II. Whether the petitioner has any legitimate expectation for being admitted in the concerned course, which is otherwise denied due to a sea change in the policy or past practices of the respondents?

17. It is appropriate to primarily advert to the constitutional scheme regarding extent of laws made by the legislatures of States. A reference to the said aspect can be drawn from the mandate of Article 245 of the Constitution of India, which reads as under: “245. Extent of laws made by Parliament and by the Legislatures of States (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation”

18. It is seen from the language of Clause (1) of Article 245 of the Constitution of India that the State Legislature may make laws for the whole or any part of the State and hence, State laws are operable only within the territorial limits of the concerned State. Therefore, the legitimate competence of a private University established under the State Act, to operate its study centres beyond the territorial jurisdiction of the State, can be determined on the touchstone of Article 245(1) of the Constitution of India. The said exercise, however, has already been done by the Hon’ble Supreme Court in a catena of judgments.

19. In the case of Prof. Yashpal (supra), the Hon’ble Supreme Court in [8] paragraph no.60, has held that the enactment which specifically makes a provision enabling a University to have an off campus centre outside the State is clearly beyond the legislative competence of the State Legislature. The relevant paragraph reads as under:

20. In the case of Kurmanchal Institute of Degree & Diploma v. Chancellor, M.J.P. Rohilkhand University[4], while deprecating the establishment of offshore study centres, the Hon’ble Supreme Court took a view that territorial jurisdiction of the University must be maintained to prevent chaos. Paragraph nos.19 and 20 are reproduced as under:

21. The decision of the Division Bench of the High Court of Judicature at Madras in the case of University Grants Commission v. Annamalai University[5], succinctly encapsulates the rationale behind the need to curb the mushrooming of offshore study centres running without the requisite approvals. Paragraph no.49 of the said judgment is reproduced as under:

25. It is, therefore, explicitly clear that the concerned regulations governing the institution from which the petitioner had obtained his BCA programme degree through distance education, categorically restrain SMU in clear and unambiguous terms from conducting the said courses outside the periphery of the State of Sikkim. The petitioner, by virtue of completing his education through the mode which was neither prescribed nor considered legal, cannot claim admission in the PGDMS course without fulfilling the requisite eligibility.

26. The learned counsel for the petitioner has heavily relied upon the decision in Sikkim Manipal University (supra) and more specifically, on paragraph nos.24 and 25, which read as under: 24(i). Before finally concluding, it is essential to record here that some students of the Petitioner-University who have undergone studies in the DEP have approached this Court as Intervenors and were represented by Mr. P. N. Misra, Learned Senior Counsel. The Intervenors are students who passed out degree courses from the Petitioner-University through [12] their Study Centre set up in Nepal, a foreign country. They have approached this Court in the present proceedings as the degrees issued by the Petitioner-University were not recognised by the Australian Government where they intended to pursue higher studies.

(ii) On a perusal of the application for intervention and the records, the

Intervenors appear to be students who had commenced with their degree courses on and from the year 2010. While the Intervenors No.1, 2 and 3 had commenced with their courses with effect from August, 2010 to July, 2013, the Intervenor No.4 from February 2011 to January, 2013. The Intervenors No.1 and 3 had undergone Bachelor of Business Administration (BBA), Intervenor No.2 had undertaken bachelor of Science in Information Technology (BScIT) and the Intervenor No.4 in Master of Business Administration (MBA) examinations. Thus, having undergone the courses when the Petitioner-University was offering programmes on the recognition granted by the Respondent No.1 through its Chairman for 3 (three) academic years commencing from 2009-10 to 2011-12, which was ratified by the Council in its 35th Meeting, they cannot be denied recognition of the degrees awarded to them by the Petitioner-University. This fact also appears to have been conveyed to the Respondent No.1 by the Petitioner-University through its letter dated 25- 10-2012, Annexure P27, apart from the fact that it had directed a freeze on new admissions on 09- 10-2012 even before direction to that effect was issued by the Respondent No.1 in its letter dated 10-10-2012, Annexure P26. 25(i). That apart, by order dated 22-02-2013, this Court in this very proceeding had stayed the operation of the condition “but not beyond the boundary of their respective States” contained in the minutes of the 40th Meeting of the DEC held on 08-06-2012 and that any consequential directions in this regard shall remain stayed and further that the Petitioner-University shall be permitted to continue to act in accordance with the communication dated 15-10-2009, Annexure P17. This interim order which was extended by order dated 19- 07-2013 was confirmed on 07-11-2013 after impleadment of the UGC-Respondent No.3 as a party after notice.

(ii) By order dated 13-04-2015 of this Court in CM Appl No. 33 of 2015 had further confirmed the aforesaid two orders, the relevant portion of which is as follows:- “6. At this stage, Mr. Misra submits that by making an observation of derecognition of the degrees of the intervenors, their job prospects are being jeopardized and they are being deprived of prosecuting their further studies, therefore, some protection may be granted to [13] them.

7. There is no occasion for this Court to deliberate on this point in an application field for permission to intervene in the main writ petition. However, it is observed that by interim order dated 22.02.2013 passed in W.P. (C) No.04/2013, it has clearly been held by this Court that during the pendency of the Writ Petition, the operation of the condition “but not beyond the boundary of their respective States”, which clearly relates to the territorial jurisdiction of the Petitioner- University, contained in the Minutes of 40th Meeting of the Distance Education Council of Indira Gandhi National Open University held on 08.06.2012, and any consequential direction in this regard shall remain stayed and the same order by a subsequent order dated 07.11.2013 has also been held to be binding on all the parties including the University Grants Commission (UGC). We are of the view that the earlier two interim orders would make the situation very clear and it is expected that all the parties concerned, including the UGC, would implement the said orders in their letter and spirit.”

(iii) None of the Respondents have taken any steps to approach this Court for either alternation/ modification or vacation of this order. They also do not appear to have approached the Hon‟ble Supreme Court to get the above orders set aside. Thus these orders having been confirmed, are held to be binding on all parties including the Respondent No.3 as observed in order dated 13-04-2015.

(iv) So far as the case of the Intervenors are concerned, considering the facts and circumstances set out above, we are of the view that their degrees should stand protected as valid. This order would also apply to all the students who are in similarly placed as the Intervenors although they are not before us.

27. He has also placed reliance on the case of Mr. Pralhad Dani (supra), particularly paragraph nos.[9] to 14, which read as under: “9. As the Petitioners had undergone the courses during the period when the DEP of the Respondent No.4-University was being run under valid recognition of the UGC and the DEC, their cases would be fully covered by the aforesaid decision.

10. It is relevant to note that there are 3 (three) categories of students who stand thus protected. They are (i) those who had commenced and completed their DEP anytime prior to the academic session 2011- 12; (ii) those who had commenced with their DEP prior to the academic session 2011-12 but, completed after that; and (iii) those who were admitted to the [14] DEP any day after the interim order of this Court dated 22-02- 2013 passed during the proceedings of Sikkim Manipal University (supra) by which operation of the condition “but not beyond the boundary of their respective States” stipulated in the decision of the DEC in its 40th Meeting dated 08-06-2012, Annexure P34, was stayed and the Respondent No.4-University was permitted to continue to act in accordance with the communication dated 15-10-2009, Annexure P27, subject to compliance of the terms thereof. The case of the Petitioners would certainly fall within the purview of the judgment in Sikkim Manipal University (supra) extracted above.

11. Apart from the above, the interim order of stay dated 22-02-2013 that was directed to be continued by a subsequent order dated 07-11-2013, was later confirmed by order dated 13-04-2015 in CM Appl No.33 of 2015 arising out of WP(C) No.04 of 2013 in Sikkim Manipal University (supra). Therefore, as a natural corollary and by necessary implication, the degrees in respect of the students, who were admitted to the DEP of the Respondent No.4-University after the order of stay, one of whom appears to be the Petitioner No.4, shall also be protected.

12. The information conveyed in letter dated 11- 05-2011, Annexure P32, issued by the Respondent No.1 to the Royal Danish Embassy, being in conflict with the decision of the DEC, firstly, in ratifying the decision of its Chairman granting recognition to the DEP of the Respondent No.4- University for the academic years 2009-10 to 2011-12 and, secondly, its own grant of recognition, be it provisional or regular, for the preceding years, would be rendered a nullity, non est and, therefore, unenforceable and is accordingly, ordered so.

13. Consequently, the DEP of the Respondent No.4-University undergone by the Petitioners and the degrees awarded to them are treated as valid and deserving to be equated on terms with an Indian degree/programme.

14. It is needless to state that this order would also apply to all the students who are similarly placed as the Petitioners although they are not before us.”

28. However, as it has been held in the decision of the Hon’ble Supreme Court in the case of Valliamma Champaka Pillai v. Sivathanu Pillai & Ors.6, the position is well settled that the decision of one High Court is not a binding precedent upon another High Court and at best, it can only have a [15] persuasive value. In the given facts and circumstances where a larger public interest is involved, it is not appropriate to take a similar view qua the petitioner as has been enunciated in the aforementioned decisions relied upon by the petitioner. It is to be noted that the relaxation offered to certain categories of students was done only as an interim measure and thus, it ought not to be allowed to be followed in perpetuity as it would be detrimental to uphold the ideals of quality education.

29. A subsequent decision of the High Court of Sikkim in the case of Sikkim Manipal University v. Union of India[7], as pointed out by the learned counsel for respondent no.1-IGNOU, dismissed a writ petition wherein the vires of the public notice dated 19.07.2016 which proscribed institutions from conducting their open and distance learning programmes outside the territorial jurisdiction of the University was challenged. The court in terms of paragraph nos.40 to 42 has held as under:

30. In the light of the foregoing decisions and the scheme of the Constitution of India, it is observed that the Hon’ble Supreme Court has taken a consistent view that the State Universities established through the State Legislature must not be allowed to operate beyond the territorial limits of the concerned State.

31. The next question which requires consideration is whether the petitioner is entitled for admission as a necessary sequitur to doctrine of legitimate expectations because of the existence of a regular practice which the petitioner can reasonably expect to continue. As per the decision of the Hon’ble Supreme Court in the case of Food Corporation of India v. [17] Kamdhenu Cattle Feed Industries[8], such a question has to be determined not according to the claimant's perception but in the larger public interest.

32. In the case of State of Bihar & Anr. v. Sachindra Narayan & Ors.9, the Hon’ble Supreme Court has held as under: “23. In view of the above judgments, legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right”

33. While striking a distinction between anticipation and legitimate expectation, the Hon’ble Supreme Court in the case of Union of India & Ors. v. Hindustan Development Corporation & Ors.10 has held as under: “28. Time is a three-fold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again, it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.”

34. The decision of the Hon’ble Supreme Court in the case of P. Suseela & Ors. v. University Grants Commission & Ors.11 also exemplifies the proposition that legitimate expectation must always yield to larger public

[18] interest. If the facts of the present case are perused, it is clear that the letter dated 21.03.2016 sent by respondent no.2-UGC to the Vice-Chancellor, SMU, in terms of paragraph no. 4(xiv) clearly states that the territorial jurisdiction in respect of university for offering programmes through distance mode will be as per the policy of respondent no.2-UGC on territorial jurisdiction and opening of off campuses/study centres as mentioned in respondent no.2-UGC’s notification dated 27.06.2013. Therefore, the contention of the petitioner that respondent no.2-UGC allowed to recognize such courses till the year 2018 does not hold any water.

35. In the case of Rai University (supra), the students studying in the centres established outside the State of Chhattisgarh, after passing of the judgment in Prof. Yashpal (supra), were praying for protection in the form of admissions in any State University of Chhattisgarh. The Hon’ble Supreme Court, however, while denying the relief, observed that at best, the concerned offshore centres may apply for affiliation with any other university which has jurisdiction over their respective places of functioning.

36. Considering the foregoing, the petitioner might have an anticipation for securing admission in PGDMS course, however, the same would not yield a crystallised or an indefeasible right on the part of the petitioner against the admission in the said course without fulfilling the prescribed eligibility.

37. This court is also of the considered opinion that an untrammelled proliferation of offshore study centres, without the requisite approvals from the concerned authorities, would lead to devaluation of academic credentials. An even-handed assessment of potential consequences of such a phenomenon would suggest that it would adversely impact the aspirations of [19] students who invest their time and resources into pursuing education through legitimate means. It would, therefore, be unwise to allow expansion of such study centres which could flourish a market of substandard education and consequently, deprive countless individuals from seeking quality education.

38. In view of the aforesaid, the petition stands dismissed being bereft of merits. Pending application(s), if any are also disposed of.

PURUSHAINDRA KUMAR KAURAV, J SEPTEMBER 27, 2023 p‟ma/shs