Supreme Court of India
ANNAMALAI UNIVERSITY REP. BY REGISTRARversusSECY. TO GOVT. INFN. & TOURISM DEPT. & ORS.
- Citation
- 2009 INSC 261
- Decided
- 25 February 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The UGC's 1985 Regulations are mandatory and binding on open universities; a master's degree obtained without a prior bachelor's degree is invalid, and the DEC cannot retrospectively validate such degrees, with the UGC Act prevailing over the Open University Act.
Summary
The Supreme Court examined whether the University Grants Commission (UGC) 1985 Regulations, which require a three‑year bachelor's degree before admission to a master's programme, apply to open universities and bind them. It held that the Regulations are statutory, mandatory and prevail over the Open University Act; consequently, a master's degree awarded by Annamalai University through its Open University System without a prior bachelor's degree is invalid. The Court also ruled that the Distance Education Council could not grant retrospective validation of such degrees and that there is no repugnancy between the UGC Act and the Open University Act. The High Court’s decision that the candidate was ineligible for the post of Principal was affirmed, and the appeals were dismissed.
Issues considered
- The applicability and binding nature of UGC's 1985 Regulations, particularly Regulation 2, to open universities.
- Whether the Open University Act, including its non‑obstante clause, overrides the UGC Regulations.
- Whether the Distance Education Council can grant post‑facto approval to degrees awarded in violation of UGC Regulations.
- Whether there is a repugnancy between the UGC Act and the Open University Act.
- Whether the High Court erred in holding the M.A. degree invalid for appointment to the post of Principal.
- Whether the Supreme Court may invoke its discretionary jurisdiction under Article 142 in this matter.
Legislation cited
- Constitution of Indias. Article 142, s. Entry 25 of List III, s. Entry 66 of List I
- Indira Gandhi National Open University Act, 1985s. 16, s. 25, s. 27, s. 5, s. 6
- University Grants Commission Act, 1956s. 12, s. 12A, s. 22, s. 26(1)(f), s. 26(1)(g)
Subjects
UGC RegulationsOpen University ActDistance EducationMinimum standards of instructionDegree validityAppointment eligibilityRepugnancy of statutesPost‑facto validationArticle 142
Judgment
- •
[2009] 3 S.C.R. 355
ANNAMALAI UNIVERSITY REP. BY REGISTRAR A
v.
SECY. TO GOVT. INFN. & TOURISM DEPT. & ORS.
(Civil Appeal No. 4173 of 2008)
FEBRUARY 25, 2009
B
· [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
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, c
Fine Arts, Music, Social Sciences, Commerce and Sciences)
Regulations, 1985:
Regulation 2 - University awarding M.A. degree through
" Open University System without the candidate having passed D
Bachelor's degree course - HELD: The M.A. degree so
awarded to the candidate being in violation of the Regulations,
he was rightly held by High Court not eligible for appointment
to the post of Principal of the Film and Television Institute -
Service Law.
E
The instant appeals were filed by the Annamalai
University and a candidate whose appointment as
Principal in the Film and Television Institute, Tamil Nadu,
was challenged by the respondent-candidate in a writ
petition before the High Court. The Division Bench of the F
High Court held that the appellant was not eligible to be
considered for the post, as the M.A. degree obtained by
him through Open University System without there being
a first (Bachelor's) degree was not a valid one and,
consequently, directed the State to take steps to fill up G
-" > the post in accordance with law.
It was contended for the appellant-University that the
University Grants Commission (the minimum standards
355 H
A
356 SUPREME COURT REPORTS [2009] 3 S.C.R.
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, framed by the UGC
both providing for the eligibility to seek admission to the
B Master's degree as also information required to be
furnished thereabout by the State Universities to the UGC,
the latter must be held to have relaxed the conditions as
no direction in that behalf was communicated to the
University. The contention on behalf of the appellant-
C candidate, was that the Master's degrees awarded upto
30.6.1989 were treated to be valid and the UGC
Regulations were amended only in the year 2003. F o r
the respondents it was contended that the purported ex
post facto recognition of the MA degree granted by the
Distance Education Council was wholly without
0
jurisdiction.
Dismissing the appeals, the Court
HELD:1.1 In the matter of higher education, it is
E necessary to maintain minimum standards of
instructions. Such minimum standards of instructions are
required to be defined by UGC. The standards and the
coordination of work or facilities in universities must be
maintained and for that purpose required to be regulated.
F [Para 23] [381-E-F]
1.2. In the matter of laying down qualification of
teachers, running of the University and the matters
provided for under the UGC Act, the 1985 Regulations are
applicable and binding on all concerned. The
G Regulations clearly aimed at the Open Universities.
IGNOU has not made any regulation; nor has it issued
any Ordinance; it is guided by the Regulations framed by
the UGC. The validity of the provisions of the 1985
Regulations has not been questioned either by IGNOU or
H by the appellant-University. From a letter dated 5.5.2004
'.
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. 357
.... TO GOVT. INFN. & TOURISM DEPT. & ORS .
~
issued by the authority who was not only the Vice- A
Chancellor but also the Chairman of the Distance
Education Council of IGNOU it is evident that the
appellant-University has violated the mandatory
provisions of the 1985 Regulations. [Para 23] [382-C-F]
B
1.3. Indisputably, the fact that the appellant-
University had been granting postgraduate degrees to
~ the candidates concerned, although they had not
completed three years' graduate degree course, in
violation of Regulation 2 of the 1985 Regulations, came
to the notice of the UGC as also IGNOU. A meeting was
c
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. It, however, appears that the degrees obtained after D
1.3.1995 upto 20.6.2007 have been recognized by the
DEC. [Para 20 and 21] [376-D-F; 377-E]
Prem Chand Jain Anr. vs. R.K. Chhabra (1984) 2 SCR
883; University of Delhi vs. Raj Singh & Ors. 1994 Suppl (3) E
SCC 516; State of T.N. & Anr. vs. Adhiyaman Educational &
Research Institute & Ors. (1995) 4 SCC 104; State of A.P. vs.
K. Purushotham Reddy & Ors. (2003) 9 SCC 564 and
...
.... Osmania University Teachers Association vs. State of Andhra
Pradesh & Anr. (1987) 4 SCC 671, referred to. F
Guru Nank Dev University vs. Sanjay Kumar Katwal &
Anr. 2008(13) SCALE 760, distinguished.
2.1. It may be that informations had been furnished
- >
by the appellant- University, but only because no action
was taken by UGC in that behalf, the same would not
mean that an illegality stood cured. The power of
relaxation is a statutory power. Grant of relaxation cannot
be presumed by necessary implication only because
G
H
358 SUPREME COURT REPORTS (2009] 3 S.C.R.
~
A 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
B 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, does not lead to a
conclusion that such relaxation can be granted
automatically. The fact that exemption is required to be
c considered on 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,
furthermore, cannot be granted in regard to the basic
D
things necessary for conferment of a degree. An order
passed by an administrative authority without complying
with mandatory provision of a statute would be void.
Such a void order cannot be validated by inaction. [Para
28] [389-D-H; 390-A]
E
2.2. 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 *'
F degrees could not have validated an invalid act. The
degrees become invalidated in terms of the provisions of
UGC ACT. When mandatory requirements have been
violated in terms of the provisions of one Act, an authority
under another Act could not have validated the same and
G 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. [Para 29] [390-
8-D]
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. 359
TO GOVT. INFN. & TOURISM DEPT. & ORS.
'I
2.3. Regulations were framed at a later point of time A
i.e. after passing of the Open University Act. Indisputably,
the regulations embrace within its fold the matters
covered under Open University Act also. [Para 30) [390-
E-F]
B
Indian Express Newspapers Pvt. Ltd. vs. Union of India
(1985) 1 SCC 641 and Bombay Dyeing & Mfg. Co. Ltd. (3)
... ""
vs. Bombay Environmental Action Group & ors. (2006) 3 SCC
434, held inapplicable.
3. The High Court is correct in rendering the opinion c
in the manner it did in its judgment. It is also not a case
where the Court should invoke jurisdiction under Article
142 of the Constitution of India. In view of the long
pending litigation, it will be unjust to deprive the writ
., "' petitioner-respondent from his lawful demand. It is not a D
,
case where discretionary jurisdiction of the Court under
Article 142 of the Constitution of India can be invoked.
Writ petitioners-respondent had moved the High Court at
the earliest possible opportunity, It is a case of
promotion. It is not a case of fresh entry in service. The E
judgment would not affect the service of the appellant. He
cannot only be promoted to the post of Principal of the
Institute. (Para 32 and 33) (391-H; 392-A-C]
'
Case Law Reference:
F
- 2008(13) SCALE 760
(1984) 2 SCR 883
distinguished
referred to
para 10
para 24
1994 Suppl (3) SCC 516 referred to para 24
G
(1995) 4 sec 104 referred to para 24
• ~
(2003) 9 sec 564 referred to para 24
(1987) 4 sec 671 referred to pctra 27
(1985) 1 sec 641 held inapplicable para 30 H
360 SUPREME COURT REPORTS [2009) 3 S.C.R.
A (2006) 3 sec 434 held inapplicable para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4173 of 2008.
From the Judgment & Order dated 4.2.08 of the High
8 Court of Judicature at Madras in Writ Petition No. 36307/
2004.
WITH •
4-
Civil Appeal Nos. 4189-4191 of 2008.
c
K. Parasaran, V. Balachandran.·P.R. Kovilan Poonguntran,
N. Prakesh and R.V. Kameshwaran for the Appellant.
G.E. Vahanvati, SG(A.C.) for the Respondent.
-
D
Amitesh Kumar, Gopal Singh, B.D. Sharma, Narottam '
Vyas, Sohan Singh and Deep Shikha Bharati for U.G.C.
The Judgment of the Court was delivered by
E S.B. SINHA, J. 1. Interpretation 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)
F 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-a-vis the provisions of the Indira
Gandhi National Open University Act, 1985 (for short, 'the Open
G 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.
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 361
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
2. Indisputably, N. Ramesh (Ramesh) and Sibi Madan A
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 B
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 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 c
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 D
for the post of Principal.
3. The 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-a-
vis those possessed by Ramesh. The challenge to the E
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 F
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, G
_,,.
> Ramesh was 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.
4. Indisputably, during the pendency of the said writ petition,
H
362 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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
B 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 High Court.
c 5. Indisputably, 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
D that UGC as well as appellant - University should be impfeaded
as parties in the writ petition.
6. Indisputably, the post of Principal in the Institute is
governed by Rules made under the proviso appended to Article
E 309 of the Constitution of India. Rufe 4 fays down the
qualifications for the said post, which reads as under:
Method of Recruitment Qualification
Promotion (i) a degree in Science
F or Arts of any
recognized University
(ii) A diploma in any
branch of Film
G Technology awarded by
any recognized Institution
in India, and
(iii) Service as Head of
Section in any branch of
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 363
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.)
Film Technology in the A
Government Institute of
Film Technology, Madras
for not less than five
years.
B
Recruitment by Transfer (i) a degree in Science or
Arts of any recognized
University
(ii) A diploma in any C
branch of Film Technology
awarded by any
recognized Institute in
India, and
(iii) Experience for a D
period of not less than ten
years in film Technology,
of which at least five
years shall be in teaching
in a Film Institute. E
7. Indisputably, 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. F
8. The Division Bench of the High Court by reason of the
impugned judgment allowed the writ petition and disposed of
the writ appeals pend;ng before it holding that Ramesh was
not eligible to be considered for the post of Principal as the G
M.A. Degree obtained by him through OUS, without there being
a first (Bachelor's) degree, was not a valid one. Consequently,
the State was directed to take steps to fill up the post of
Principal in accordance with law.
H
364 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 9. Aggrieved thereby and dissatisfied therewith, the
University as also Ramesh are before us.
10. Mr. K. Parasaran, learned Senior Counsel appearing
on behalf of the appellant - University would submit:
B 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
c impugned judgment.
ii. Regulations framed by the UGC both providing for
the eligibility to seek admission to the Masters'
degree as also information required to be furnished
D 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,
being an authority constituted under Statute 28 of
E
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.
F 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
G 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.
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 365
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
iv. Regulations framed by UGC in any event being in A
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 B
enactment and both statutes 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
c
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.
D
11. Mr. R.V. Kameshwaran, learned counsel appearing
on behalf of the appellant - Ramesh would contend:
i. Having regard to the provisions of the UGC Act and
in particular Section 27 thereof providing for
E
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
F
~' the Central Government subject to approval of the
DEC, IGNOU, the High Court must be held to have
committed a serious error in holding contra.
ii. From various correspondences, it would appear
) that the UGC Regulations were amended only in G
the year 2003 and the Master's degree awarded
upto 30.6.1989 were treated to be valid.
iii. Many established Universities like that of
Annamalai University across the country, having
H
366 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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 set aside.
B 12. Mr. 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
c the requisite jurisdiction to lay down syllabus as also duration
of such courses.
13. Mr. Amitesh Kumar, learned counsel appearing on
behalf of the UGC would urge:
D
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
E 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
F appellants must be held to be wholly misconceived.
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
G 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.
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ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 367
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
iv UGC having the requisite jurisdiction inter alia to lay A
down the minimum standard, Regulations framed
by it are binding on all Universities and, thus, it
would not be correct to contend that Open
University Act shall prevail over the regulations
·f
framed by the UGC. B
,
14. Mr. 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
c
of laying minimum standard, the question declaring the
regulations ultra vires of the Open University Act does not
arise.
15. Entry 66 of List I of the Seventh Schedule to the D
Constitution of India reads thus:
"66. Co-ordination and determination of standards in
institutions for higher education or research and scientific
and technical institutions." E
'Education' is also in the Concurrent List; Entry 25 whereof
reads as under:
"25. Education, including technical education, medical
education and universities, subject to the provisions of F
entries 63, 64, 65 and 66 of List I; vocational and technical
training of labour."
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,
G
comes within the purview of Entry 66 of List I of the Seventh
H
368 SUPREME COURT REPORTS (2009] 3 S.C.R.
A 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 .
8 of Section 4 of the UGC Act. Powers and functions of the 1'(
Commission have been laid down in Chapter Ill thereof. Section
12 provides for functions of the Commission; some of the
relevant provisions whereof are:
L
"12. It shall be the general duty of the Commission to take,
C 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
D the purpose of performing its functions under this Act, the
Commission may-
(d) recommend to any University the measures
E necessary for the improvement of University
education and advise the University upon the action
to be taken for the purpose of implementing such
recommendation; >
F
(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
G 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;"
H Section 12A provides for regulation of fees and prohibition
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 369
GOVT. INFN. & TOURISM DEPT. & ORS. [S.S. SINHA, J.]
of donations in certain cases. Clause (c) whereof reads as A
under:
"(c) "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
8
course of study;"·
Section 22 provides for right to confer degrees. Sub-
section (1) and reads as under:
"(1) The right of conferring or granting degrees shall be c
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." o
The Commission is empowered to make regulations by
notification in terms of Section 26, inter alia, for the following
purposes:
"26(1 )(e) defining the qualifications that should ordinarily E
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
(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 Universities.
G
~ (h) regulating the establishment of institutions referred
to in clause (ccc) of section 12 and other matters
relating to such institutions;"
Section 28 mandates that every rules and regulations must
H.
370 SUPREME COURT REPORTS [2009] 3 S.C.R.
A be placed before each House of Parliament.
16. Open 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
8
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:
c
"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
D 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
E
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
F and relevant, while at the same time ensuring effective
equaliza!ion of opportunities. Though a diversity of means,
including the utilization of modern communication
technology, the distance education can provide more
flexible and open learning programmes that will suit the
G 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
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ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 371
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.)
..
University Act. A
"2(e) "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
8
combination of any two or more of such means;
)()()( )()()( )()()(
3. Establishment and incorporation of the University.-
(1) There shall be established a University by the name of c
"the Indira Gandhi National Open University".
)()()( )()()( )()()(
4. The objects of the University.- The objects of the
University shall be to advance and disseminate learning D
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 E
education systems in the educational pattern of the country
and to co-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
First Schedule. F
5. Powers of the University.- (1) The University shall have
the following powers, namely:-
G
,, ~ (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 H
372 SUPREME COURT REPORTS [2009] 3 S.C.R.
A Ordinances;
)()()( )()()( )()()(
(v) to determine the manner in which distance
education in relation to the academic programmes
B of the University may be organised;
)()()( )()()( )()()(
(xiii) to recognise examinations of, or periods of study
(whether in full or part) at, other universities,
c 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;
D )()()( xxx xxx
(xxiv) to determine standards and to specify conditions
for the admission of students to courses of study
of the University which may include examination,
E evaluation and any other method of testing;
xxx xxx xxx
)()()( xxx )()()(
F 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
G
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
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO · 373
GOVT. INFN. & TOURISM DEPT & ORS. [S.B. SINHA, J.]
higher learning, as may be specified by the Statutes." A
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 8
Statutes to be the authorities of the University."
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 c
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.
D
The First Schedule appended to the Open University Act
provides for the objects of IGNOU, the relevant provisions
whereof read as under:
"1(e) contribute to the improvement of the educational
system in India by providing a non-formal channel E
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;
F
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
G
,·
educational technology to offer a high quality of education
' which matches contemporary needs."
17. Indisputably, 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 regulations. A notification in this H
374 SUPREME COURT REPORTS [2009] 3 S.C.R.
•
A 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.
B "2. 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
c 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.
D (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
E admission to the Master's Course in these faculties, who
has not successfully pursued the first Degree Course of
three years duration:
Provided further that, as a transistory measure where
F 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
G 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. (Pass)
degree."
6. Information.- Every University providing instruction -
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 375
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
~
through non-formal/distance education shall furnish to the A
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'. B
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
c
of each case."
Regulations 6 and 7 were renumbered as Regulations 7
.... and 8 at a later stage .
D
18. Indisputably, 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 E
communication on or about 25.11.1988 stating that the
·- '
degrees/diplomas awarded by the Universities established
inter alia by a State Legislature will stand automatically
recognized for the purpose of employment under the Central
- Government
19. Indisputably, appellant - University established a
F
separate Directorate for Distance Education Programme
offering different courses of studies. It, however, started
functioning in the year 1991. Offering courses of studies under G
·(
-I
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
H
376 SUPREME COURT REPORTS [2009] 3 S.C.R.
•
A undergone the preparatory course and written test and was of
21 years of age and above became eligible for undertaking
the postgraduate course. The said programme is said to have
been introduced on an experimental basis. Similar programmes
offering courses of undergraduate and post-graduate levels
B through the OUS were also adopted and followed by various
other UniVE3rsities 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
c of the 1985 Regulations. The Government of Tamil Nadu
6
allegedly at the request of the appellant - University and on
the basis of the recommendations made by a Committee
constituted by them for the aforementioned purpose directed
that the bachelor and postgraduate degrees and diplomas
awarded by the Open Universities be treated on par with those
D
awarded under regular stream for any appointment to the post
in public service.
20. Indisputably, the fact that the appellant - University
had been granting postgraduate degrees to the candidates
E 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
F 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:
G
"In the meeting, both the undersigned as Chairman DEC • l'
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
H
~
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 377
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
-'
Universities of Tamil Nadu. A
... We drew your kind attention to the UGC regulation 1985
regarding the minimum standard of instructions for the
grant of the first degree through non-formal/distance
education dated 25th November, 1985 according to which
B
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 c
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 D
forthcoming session starting from July 2004. I would feel
grateful to receive your confirmation on this matter."
21. It, however, appears that the degrees obtained after
1.3.1995 upto 20.6.2007 have been recognized by the DEC e
as would appear from a letter issued by the said DEC dated
21.7.2008, which reads as under:
'
"This has reference to your application requesting for post-
facto recognition of Distance Education Council for
programmes offered through distance mode by Directorate F
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
J
visited your university, the Chairman, Distance G
•
Education Council has accorded post-facto approval to
your university for programmes offered through distance
mode with effect from 1st March. 1999 to aofldemio year
2006-2007. Prior to March 1995, there was no ~ystem for
giving recognition to correspondence courses or distance H
378 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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.
B 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
c 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 university.
D (emphasis supplied)"
22. The 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.
E
Before, however, determining the aforementioned
question, we may take note of some correspondences also
as declared by the UGC in its counter affidavit.
F The UGC in its letter No.F.1-75/91 (CPP) dated
30.12.199'1 to the Registrar of various Universities regarding
application of UGC Regulations 1985, informed them that for
admitting candidates in courses for which the First degree
was the minimum qualification. the universities may not insist
G 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-
11) dated 24.04.1996 informed the Universities of its decision
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 379
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
regarding the validity of one year degree course (one-sitting) A
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 B
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. c
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 D
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 E
an examination."
' It in the said letter also asked the universities to ensure
that the above mentioned decisions be scrupulously followed
by them. F
In continuation of the said office letter, the UGC, thereafter
vide letter F.11-4/92 (CPP-11) dated 14.03.1997 informed the
Vice Chancellor's of the Universities as under.
"The degrees of the candidates enrolled for the one G
~ 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". H
380 SUPREME COURT REPORTS [2009] 3 S.C.R.
A Thereafter 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-1) dated 1st February, 1998 informed the
registrars of various universities that:
B
"no university may be allowed to enroll candidates
for one sitting of M.A./M.Sc./M.Com. from the academic
year beginning in 1998 onwards and the students already
registered may be allowed to complete their course by 30th
June, 1999, and the degree awarded to these candidates
c 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
D No. F.1-30/96 (CPP-11) dated 23.07 .1998 to the Registrar of
the Universities.
Again after considering a number of representations/
complaints from various persons, the U.G.C. vide its letter
E 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
F 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.
G
23. UGC 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
H 25 of List Ill thereof. The question of repugnancy of the
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 381
GOVT. INFN. & TOURISM DEPT. & ORS. [S.8. SINHA, J.)
provisions of the said two Acts, therefore, does not arise. It is A
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 B
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 C
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 D
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 universities. In the matter of higher education, it E
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. F
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 G
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
H
382 SUPREME COURT REPORTS (2009] 3 S.C.R.
'
A 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
B 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.
It has not been denied or disputed before us that in the
C 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
D 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
E either by IGNOU or by the appellant- University. 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.
F
24. The amplitude of the provisions of the UGC Act vis- <
a-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 integra.
G In Prem Chand Jain Anr. vs. R.K. Chhabra [(1984) 2
SCR 883], this court held:
"The legal position is well-settled that the entries
incorporated in the lists covered by Schedule VII are not
H powers of legislation but 'fields' of legislation. Harakchand
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 383
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
v. Union of India [(1970) 1 S.C.R. 479 at p.489]. In State A
of Bihar v. Kameswar [1952] 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. Navinchandra v. C.I. T. [1955] 2 B
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 be comprehended. See State
of Madras v. Gannon Dunkerley [1959] S.C.R. 379 at p.
391. It has also been held by this Court in The Check Post c
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,
0
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 E
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
legislature."
F
In University of Delhi vs. Raj Singh & ors. [1994 Suppl
(3) SCC 516], this Court held:
"13 .... By reason of entry 66, Parliament was invested with
the power to legislate on "coordination and determination G
of standards in institutions for higher education or reach
and scientific and technical institutions." Item 25 of List Ill
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
H
384 SUPREME COURT REPORTS [2009) 3 S.C.R.
..
A 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
B 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
c 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 Article 254(1)."
D
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:
E "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. It means harmonisation
F with a view to forge a uniform pattern for a concerted
action according to a certain design, scheme or plan of
development. It, therefore, includes action not only for
removal of disparities in standards but also for preventing
the occurrence of such disparities. It would, therefore, also
G 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
H intention.
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 385
i,
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
(ii) To the extent that the State legislation is in conflict with A
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 B
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 25'4, the State legislation being
repugnant to the Central legislation, the same wou,ld be
c
inoperative.
(iv) Whether the State law encroaches upon Entry 66 of
-;·
the Union List or is repugnant to the law made by the center
under Entry 25 of the Concurrent List, will have to be D
determined by the examination of the two laws and will
depend upon the facts of each case.
(v) When there are more applicants tha.n the available
situations/seats, the State authority is not prevented from E
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.
F
(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 G
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 H
386 SUPREME COURT REPORTS [2009] 3 S.C.R.
'
A authorities act illegally."
In State of A.P. vs. K. Purushotham Reddy & ors. ((2003)
9 SCC 564], this Court held:
"19. The conflict in legislative competence of the
B Parliament and the State Legislatures having regard to
Article HYPERLINK "javascript:fnOpenGlobalPopUp('/
>
ba/disp.asp','17232','1');" 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 Entry has to
c be interpreted in a broad manner. Both the 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
D HYPERLI N K "javascript:fnOpenGlobalPopUp{' /ba/
disp.asp' ,'17232','1 ');" 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.
E Furthermore, the Courts should proceed to construe a
statute with a view to uphold its constitutionality."
It was observed:
"20. Entry 66 of List I provides for coordination and
F determination of standards inter alia for higher education.
Entry 25 of List Ill 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 subjecf to
G 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
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 387
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
terms of Entry 66 of List I of the Seventh Schedule to the A
Constitution of India would prevail over the Open University
Act.
25. With respect, it is difficult to accept the submissions
of learned Solicitor General that two Acts operate in different
8
fields, namely, conventional university and Open University.
UGC Act, indisputably, governs Open Universities also. In fact,
a
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 C
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 noticed: D
" ... 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 ... "
26. Unfortunately, attention of this Court was not drawn to E
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 F
to be a matter of policy. Observations which have been made
for holding the degrees granted by appellant - University as
valid must be 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 G
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.
H
388 SUPREME COURT REPORTS [2009] 3 $.C.R.
A 27. This Court in Osmania University Teachers
Association vs. State of Andhra Pradesh & Anr. [(1987) 4
sec 671], held as under:
"14. Entry 25 List Ill relating to education including technical
education, medical education and Universities has been
B
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
c 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
D 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
E interest, the legislative field in regard to 'education' has
been distributed between List I and List Ill of the Seventh
Schedule.
15. The Parliament has exclusive power to legislate with
F 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 ~aid,
inoperative and unenforceable."
xxx xxx xxx
G
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
H that purpose. The University Grants Commission has,
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 389
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.)
therefore, a greater role to play in shaping the academic A
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. Dissemination of
learning with search for new knowledge with discipline all B
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 Universities." C
28. 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
-1 through non-formal/distance education relating to the
observance thereof by itself, in our opinion, would not satisfy D
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 E
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 F
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 G
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, H
390 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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 Authority, it would be void. Such a void order
cannot be validated by inaction.
B
29. The 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
c 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 requirements have been violated in terms of ..
D 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.
E
30. It 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
...
F Open University Act. Regulations were framed at a 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
G
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
H
ANNAMALAI UNIVERSITY REP. BY REGISTRAR v. SECY. TO 391
GOVT. INFN. & TOURISM DEPT. & ORS. [S.B. SINHA, J.]
will be attracted provided the statutes operate in the same A
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 B
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. c
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:
D
"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 E
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 the Constitution. A subordinate legislation
apart from being intra vires the Constitution, should not F
also be ultra vires the parent Act under which it has been
made. A subordinate 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."
G
31. There is no quarrel with the aforementioned proposition
of law. Regulation 2, however, is not contrary to Open University
Act and, thus, the said decisions will have no application.
32. We, therefore, are of the opinion that the High Court H
392 SUPREME COURT REPORTS [2009] 3 S.C.R.
A is correct in rendering the opinion in the manner it did in its
judgment.
33. It 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
8
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
C earlier round of litigation, the Madras High Court opined:
"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
D 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
E cannot be quashed."
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
F Article 142 can be invoked.
34. With the aforementioned reasons, we find no merit in
-
these appeals. The appeals are dismissed accordingly. No
costs.
G
R.P. Appeals dismissed.
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