St. Peter Institute of Higher Education and Research v. University Grants Commission

15. He contends that as per Regulation 8(3), the affiliating University is obliged to grant ‘No Objection Certificate’ (NOC) to the institution ‘Deemed-to-be University’ within a maximum period of 60 days from the date of receipt of the request, failing which it shall be presumed that the affiliating University has no objection to the application made by the institution Deemed-to-be University for establishing an Off-Campus Centre. In such case, the acknowledgment in receipt of the request shall be submitted as a document in lieu of NOC.

16. Elaborating on his submission, Mr. Chaddha submits that the application was submitted by the petitioner no.1 to the respondent no.3 for NOC on 09.10.2023 and the period of 60 days expired on 08.12.2023 but the letter was dispatched only on 14.12.2023 i.e. 06 days after the expiry of 60 day period.

17. He thus, contends that the application of the petitioner for NOC not having been decided within a period of 60 days, the deeming provision will come into play and it will be presumed that the affiliating University has no objection to the application of the petitioner. In support of his submission, Mr. Chaddha places reliance on the decision of the Constitution Bench of the Hon’ble Supreme Court in Voltas Ltd., Bombay v. UOI & Ors., 1995 Supp (2) SCC 498.

18. He further contends that mere passing of a decision is meaningless unless the same is communicated to the person affected by it. He submits that till the time the decision is in the file of the authority, it can be changed anytime. He further submits that the opinion becomes a decision of the government only when it is communicated to the person concerned. To buttress his contention, he places reliance on – (i) Bachhittar Singh v. State of Punjab & Ors., 1962 SCC OnLine SC 11; (ii) State of Punjab v. Khemi Ram, (1969) 3 SCC 28; and (iii) Sethi Auto Service Station and Anr. v. Delhi Development Authority and Ors., (2009) 1 SCC 180.

19. Mr. Chhadha also draws attention of the Court to Regulation 8(4), 8(5) and 8(6) to contend that the said provisions mandate that the UGC shall appoint Standing Committee to examine the infrastructure and other relevant aspects and report compliance to UGC, based on which UGC would recommend issuance of Letter of Intent (LoI) to the Central Government for notifying starting the Off-Campus Centre. He contends that the entire process of ensuring compliance and forming an opinion on the applicant is to be undertaken by UGC, which has already been done.

20. He contends that the role of respondent no.3 is only confined to issuance of NOC in terms of Regulation 8(3), and the only purpose of getting NOC from the affiliating University (respondent no.3 herein) is to ensure that there are no pending issues or claim between the college sought to be de-affiliated and the affiliating University.

21. Per contra, Mr. Manoj Ranjan Sinha, learned counsel appearing on behalf of respondent no.1/UGC, bringing attention of the Court to Regulation 8(3), submits that affiliating University is only obliged to take decision within a period of 60 days and there is no requirement of communicating the same within such stipulated period.

22. Mr. G. Balaji, learned counsel appearing on behalf of respondent no.3, besides adopting the submission of Mr. Sinha, submits that decision taken by the affiliating University/respondent no.3 on 08.12.2023 was within a maximum period of 60 days as stipulated under Regulation 8(3). However, he fairly states that the said communication/letter dated 08.12.2023 was dispatched only on 14.12.2023 and the same was delivered to petitioner on 15.12.2023.

23. He further submits that the present petition suffers from delay and latches inasmuch as petitioner received the impugned order dated 08.12.2023, on 15.12.2023, whereas the writ petition came to be filed only on 13.02.2025.

24. He contends that the present petition is also barred by principle of constructive res judicata. Elaborating on his submission, he submits that petitioner had earlier filed a writ petition being W.P.(C) 14046/2024 before this Court seeking a mandamus against the UGC and Union of India to grant approval under Regulation 8 of the Regulations of 2023. But at that stage, petitioner did not challenge the impugned communication/letter dated 08.12.2023 issued by respondent no.3 whereby NOC was refused.

25. He further contends that the decisions relied upon by petitioner for the proposition that the decision can be termed as an order only after it has been communicated, are only in the context of file noting, minutes of meeting etc. where no final order has been passed, or in a case where the provision itself envisages that the order needs to be communicated within a particular time period.

26. Having heard learned counsel for the parties, it needs to be noted that petitioner no.1 is a ‘Deemed-to-be University’ seeking establishment of an Off-Campus Centre at Hosur, Tamil Nadu by taking over four of its institutes located in Hosur which are admittedly run by the same Trust, i.e., St. Peter’s Institute of Higher Education and Research Trust that manages the petitioner no.1/Deemed-to-be University as well. This can be done only by first de-affiliating the said institutes from the existing affiliating State University i.e. respondent no.3.

27. Establishment of an Off-Campus Centre by a ‘Deemed-to-be University’ is governed by the Regulations of 2023. Regulation 8(1) provides for the eligibility to establish an Off-Campus Centre, which reads as under: ―8. Off-campus centres.—(1) (i) Institutions deemed to be Universities with minimum ‗A‘ grade and above or ranked from 1 to 100 in the "Universities" category of NIRF rankings of the relevant year are eligible to set up off-campus centres.‖

28. Regulation 8(1) lays down that for establishing Off-Campus Centre -

(i) the applicant must be Deemed-to-be University, and (ii) the said ‘Deemed-to-be University’ must be of ‘A’ Grade or above. The status of the petitioner as ‘Deemed-to-be University’ is an admitted position. It is also a matter of record that petitioner no.1 has been accredited with an ‘A+’ Grade by NAAC on 02.08.2023 with validity thereof up to 22.08.2023, as is borne out from NAAC certificate attached to the petition, which is not in dispute.

29. Regulation 8(3) governs the procedure for establishing the Off- Campus Centre by taking over existing affiliated college, which reads as under: ―(3) By following the procedure specified in these regulations for setting up the off-campus centres, an institution deemed to be University may also apply on the Commission‘s portal for establishing an off-campus centre by taking over any affiliated college under the same sponsoring society or trust or company by progressively closing the affiliated college to convert it into an offcampus centre and a no objection certificate from the affiliating University shall accompany the application and the affiliating University may decide on granting no objection certificate to the institution deemed to be University within a maximum period of sixty days from the date of receipt of the request, failing which it shall be presumed that the affiliating University has no objection to the application by the institution deemed to be University for establishing an off-campus centre and in such cases, the acknowledgement for receipt of the request shall be submitted as a document.‖ (emphasis supplied)

30. A perusal of above quoted Regulation 8(3), shows that to establish an Off-Campus Centre, an application has to be made to the UGC accompanied by an NOC from the existing affiliating University for the college sought to be established as an Off-Campus Centre.

31. An application has to be made by the Deemed-to-be University to the affiliating University seeking NOC from it and thereafter, an order/decision on the said application, either granting or refusing the NOC, has to be passed by the affiliating University, respondent no.3 in the present case, within 60 days from date of receipt of the request. The regulation further mandates that if the order/decision is not made within 60 days, it shall be presumed, by virtue of a statutory fiction, that NOC has been granted and it would be sufficient that the acknowledgement for receipt of the request itself is submitted in lieu of the NOC.

32. The petitioner applied for issuance of NOC to the affiliating University i.e. respondent no.3 on 09.10.2023. The period of 60 days within which NOC was to be issued by the affiliating University thus, expired on 08.12.2023, which fact is not disputed by either of the parties. Contention of the petitioner is that order refusing NOC, purportedly came to be passed on 08.12.2023, is ante-dated inasmuch as the same was dispatched on 14.12.2023 and was delivered to petitioner no.1 on 15.12.2023.

33. Though respondent no.3 does not dispute the date of dispatch and delivery, but the submission put forth is that the requirement of Regulation 8(3) is only to decide on the application for NOC within the period of 60 days from the date of making application and there is no mandate of the Regulation that such decision has to be communicated within a period of 60 days.

34. Regulation 8(3) uses the expression ‗the affiliating University may decide on granting no objection certificate to the institution deemed to be University within a maximum period of sixty days’, but taking a decision within a period of 60 days and not communicating the same to institution Deemed-to-be University would have no meaning. In the opinion of this Court, an order which is lying in the file of any authority can be changed at any time before it is dispatched. The decision taken therein, in that case, could be only considered as a draft or a provisional decision. The order would come into effect only when it has been actually communicated to the applicant/concerned person.

35. Reference in this regard may be had to the decision of the Hon’ble Supreme Court in Khemi Ram (supra). In the said case, the controversy was with regard to communication of an order of suspension. The question which arose for consideration was whether the essential fact to be taken into account was communication of the impugned suspension order or the actual receipt of the said order by the officer concerned. In that context, the Hon’ble Supreme Court observed that it was the communication of the impugned order which is essential and not its actual receipt by the officer concerned. It was further observed that such communication was held to be necessary because till the order is issued and actually sent out to the person concerned, the authority making such order would be in a position to change its mind or modify it, if it so thinks fit. The relevant part of the said decision reads thus: ―17. The question then is whether communicating the order means its actual receipt by the concerned government servant. The order of suspension in question was published in the Gazette though that was after the date when the respondent was to retire. But the point is whether it was communicated to him before that date. The ordinary meaning of the word ―communicate‖ is to impart, confer or transmit information. (Cf. Shorter Oxford English Dictionary, Vol. 1, p. 352). As already stated, telegrams, dated July 31 and August 2, 1958, were despatched to the respondent at the address given by him where communications by Government should be despatched. Both the telegrams transmitted or imparted information to the respondent that he was suspended from service with effect from August 2, 1958. It may be that he actually received them in or about the middle of August 1958, after the date of his retirement. But how can it be said that the information about his having been suspended was not imparted or transmitted to him on July 31 and August 2, 1958 i.e. before August 4, 1958, when he would have retired? It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word ―communication‖ ought not to be given unless the provision in question expressly so provides……..‖ (emphasis supplied)

36. Earlier in Bachhittar Singh (supra) a Constitution Bench of the Hon’ble Supreme Court had an occasion to consider similar proposition of law in the backdrop of an order having been passed by a Minister but kept on file, wherein such order was not communicated to the concerned person. The Court referred to Article 161 of the Constitution and held that the decision of the Minister could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the Article and was then communicated to the party concerned.

37. The law is also well settled that when a legislation creates a legal fiction, the Court has to ascertain for what purpose the legal fiction has been created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction.[1]

38. In the present case, it appears that the provision of obtaining an NOC from the affiliating University is only a formal requirement, which seems to have been put in place to allow the affiliating University to raise any claims Manish Trivedi v. State of Rajasthan, (2014) 14 SCC 420 or issues with the college sought to be de-affiliated and get the same resolved before granting NOC. Clearly, the fiction has been created to expedite the process of granting ‘No Objection Certificate’ by the affiliating University. If NOC is not refused within 60 days, it shall be presumed that NOC has been granted, and the submission of proof of receipt of application will suffice in lieu of NOC.

39. Since the decision dated 08.12.2023 was not communicated within the period of 60 days, therefore, it shall be presumed that the affiliating University i.e. the respondent no.3 has no objection to the application by the petitioner no.1 for establishing an Off-Campus Centre.

40. Insofar as the reasons given by respondent no. 3 in its impugned communication/letter dated 08.12.2023 is concerned, this Court need not dilate on the same, since it has already been held that in view of the legal fiction, it shall be presumed that NOC has been granted. However, suffice it to observe that respondent no.3 could not have refused NOC merely by alluding to some State policy. Under the Regulations, the State Government has no say or role for the purpose of granting of NOC. It is only the affiliating University which has the discretion.

41. During the course of arguments, a pointed query was made to the learned counsel appearing on behalf of the respondent no.1/UGC as to whether there were any reasons other than the refusal to grant of NOC by respondent no.3, which warranted denial of permission to establish the Off- Campus Centre at Hosur, Tamil Nadu by the petitioner no.1. To this, Mr. Sinha fairly stated that the only impediment was the communication/letter dated 08.12.2023 of the respondent no.3.

42. However, the said communication/letter dated 08.12.2023 of the respondent no.3, refusing grant of NOC, has been found to be inconsequential in view of the deeming provision in Regulation 8(3). Therefore, rejection by the respondent no.2/UOI vide impugned order dated 15.01.2025 on the ground that respondent no.3 has refused NOC for conversion of petitioner no.1’s institutes to an Off-Campus Centre, is not tenable.

43. As regards the submission of respondent no.3 that the petition suffers from delay and laches, it needs to be noted that though the order of respondent no.3 which has been assailed in the present petition is dated 08.12.2023, but the final order by respondent no.2/UOI came to be passed only on 15.01.2025 whereby the approval for the establishment of Off- Campus Centre at Hosur, Tamil Nadu has been denied. Passing of the order dated 15.01.2024 finally furnished a cause of action to the petitioners for filing the present petition. Therefore, it cannot be said that the petition suffers from any delay or laches.

44. Likewise, the submission that petition is barred by principle of constructive res judicata is also misconceived. In the earlier writ petition i.e. W.P.(C) 14046/2024, the petitioner had only sought mandamus against UGC and UOI to grant approval under Regulation 8. At that stage, though the impugned letter dated 08.12.2023 had been issued by respondent no.3 thereby refusing the NOC, but no occasion arose for the petitioner to challenge the same as the final decision was yet to be taken by UGC and UOI.

45. It is only after respondent no.2/UOI passed the impugned order dated 15.01.2025, on the ground that the application was not accompanied by the NOC, that it became known to the petitioners that the benefit of deeming provision as provided in Regular 8(3) has not been extended to them by the respondent nos.[1] and 2. Therefore, non-assailing of respondent no.3’s impugned letter dated 08.12.2023 in the earlier writ petition, in which only mandamus was sought against the UCG and UOI to dispose of petitioners’ application, cannot be held against the petitioners.

46. The upshot of above discussion is that the present petition deserves to be allowed, and impugned order dated 15.01.2025 passed by respondent no.2, as well as, the communication/letter dated 08.12.2023 issued by respondent no.3 cannot be sustained. Accordingly, the same are quashed and set aside.

47. Resultantly, the respondent nos.[1] and 2 are directed to process petitioner no.1’s application for establishing its Off-Campus Centre in Hosur, Tamil Nadu and pass a fresh order in light of this judgment, within a period of two weeks from today.

48. The petition along with pending applications, is disposed of.

VIKAS MAHAJAN, J JULY 23, 2025 N.S. ASWAL/jg