REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4173 OF 2008

ANNAMALAI UNIVERSITY REP. BY REGISTRAR … APPELLANT

VERSUS

SECY. TO GOVT. INFN. & TOURSM  DEPT. & ORS.       … RESPONDENTS

WITH

CIVIL APPEAL NOS. 4189-4191 OF 2008

N. RAMESH    ...APPELLANT

VERSUS  

SIBI MADAN GABRIEL & ORS.        …RESPONDENTS

J U D G M E N T

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) 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-à-vis the provisions

of the Indira Gandhi National Open University Act, 1985 (for short, “the

Open University Act”) is in question in these appeals.  They arise out of a

common judgment and order dated 4.2.2008 passed by a Division Bench of

the High Court of Judicature at Madras in Writ Appeal Nos. 1221 of 2005

and 82 of 2006 and Writ Petition No. 36307 of 2004.   

2. Indisputably, N. Ramesh (Ramesh) and Sibi Madan Gabriel (Gabriel)

were  candidates  for  appointment  to  the  post  of  Principal  in  Film  and

Television Institute (for short, “the Institute”) of Tamil Nadu.   Gabriel was

appointed temporarily as a ‘Lecturer in Acting’ in the Institute on or about

26.5.1982.  His services were regularized with retrospective effect from the

date  of  his  joining  by  an  order  dated  20.2.1992.   He  was  subsequently

promoted as Head of Section by G.O.Ms. No. 236 dated 17.8.1993.  The

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next avenue of promotion from the post of Head of Section is the post of

Principal in the Institute.  In the year 2000, Ramesh was given the additional

charge to the post of Principal.  Gabriel filed an Original Application before

the Tamil Nadu Administrative Tribunal (for short, “the Tribunal”), which

was marked as O.A. No. 5275 of 2000 questioning the legality of the said

appointment on the ground that Ramesh did not have the requisite essential

educational qualification for the post of Principal.   

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-à-vis  those  possessed  by

Ramesh.  The challenge to the qualification of Ramesh was that he did not

possess  a  basic  graduation  degree  and,  thus,  the  post-graduation  degree

conferred on him by appellant - University is invalid in law.  At that stage,

the  State  appointed  one  Mr.  K.  Loganathan,  which  was  challenged  by

Ramesh  by  way  of  O.A.  No.  2085  of  2003  before  the  Tribunal.   Said

application  was  dismissed  by  the  Tribunal  by  reason  of  an  order  dated

5.1.2004.  Ramesh challenged the said order of the Tribunal by filing a writ

petition  marked  as  Writ  Petition  No.  841  of  2004,  which  had  become

infructuous  as  after  retirement  of  said  Mr.  K.  Loganathan,  Ramesh  was

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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, Gabriel

filed W.M.P. No. 43649 of 2004 for stay, which was granted.  Ramesh filed

W.V.M.P. No. 2428 of 2004 for vacating the stay which was rejected by the

learned single judge by order dated 21.6.2005.  Writ appeals were preferred

thereagainst  by  Ramesh  as  also  State  Government  and  the  Director  of

Information and Public Relation, which were marked as Writ Appeal No.

1221 of 2005 and Writ Appeal No. 82 of 2006.  By reason of judgment and

order  dated  14.2.2006,  while  allowing  the  writ  appeals,  writ  petition

preferred  by  Gabriel  was  dismissed  by  the  Division  Bench  of  the  High

Court.  

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 that UGC as well as appellant - University should

be impleaded 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 309 of the Constitution

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of India.  Rule 4 lays down the qualifications for the said post, which reads

as under:

Method of Recruitment Qualification

Promotion i)  a  degree  in  Science  or  Arts  of  any

recognized University  

ii)  A  diploma  in  any  branch  of  Film

Technology  awarded  by  any  recognized

Institution in India, and

iii)  Service  as  Head  of  Section  in  any

branch  of  Film  Technology  in  the

Government Institute of Film Technology,

Madras for not less than five years.

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Recruitment by Transfer i)  a  degree  in  Science  or  Arts  of  any

recognized University  

ii)  A  diploma  in  any  branch  of  Film

Technology  awarded  by  any  recognized

Institute in India, and  

iii) Experience for a period of not less than

ten years in film Technology, of which at

least  five  years  shall  be  in  teaching  in  a

Film Institute.

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.   

8. The Division Bench of the High Court  by reason of the impugned

judgment allowed the writ petition and disposed of the writ appeals pending

before it holding that Ramesh was not eligible to be considered for the post

of  Principal  as  the M.A. Degree  obtained by him through OUS, without

there being a first (Bachelor’s) degree, was not a valid one.  Consequently,

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the  State  was  directed  to  take  steps  to  fill  up  the  post  of  Principal  in

accordance with law.   

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:

i. The  system  of  imparting  education  between  a

conventional  University and an  Open University being

different and being governed by the UGC Act and the

Open  University  Act  respectively,  the  High  Court

committed  a  serious  error  in  passing  the  impugned

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 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,

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being  an  authority  constituted  under  Statute  28  of  the

Open University Act, having granted post-facto approval

to  the  courses  of  studies  of  the  University  by a  letter

dated 21.7.2008 this Court should set aside the impugned

judgment.  

iii. In view of the decision of this Court in Guru Nanak Dev

University vs.  Sanjay Kumar Katwal & Anr. reported in

2008 (13) SCALE 760, the decision of the High Court

has been rendered erroneous as therein Master’s degree

under the OUS by the appellant  – University has been

held to be valid stating that although one University is

entitled not to recognize the said degree as an equivalent

to the qualification it may have prescribed for eligibility

to a higher course.   

iv. Regulations  framed  by  UGC  in  any  event  being  in

conflict with the Open University Act must be held to be

ultra vires the same particularly in view of the fact that

sub-Section (2) of Section 5 of the Open University Act

provides for a non-obstante clause.  In any event, Open

University Act being a later enactment and both statutes

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having been passed by the Parliament, the provisions of

Open University Act would prevail over the UGC Act.   

v. In any view of the matter as from 1995 till 2005 several

persons have received degrees issued by the University

and if they are disqualified at this stage, a large number

of  persons  would  suffer  irreparable  injury,  this  Court

should issue appropriate directions in this behalf.  

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 delegation of power

to the authority, and as a Notification dated 1.3.1995 has been

issued  directing  that  the  degrees  issued  by  the  Universities

would  stand  automatically  recognized  for  the  purpose  of

employment  to  posts  and  services  under  the  Central

Government subject to approval of the DEC, IGNOU, the High

Court  must  be  held  to  have  committed  a  serious  error  in

holding contra.   

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ii. From various correspondences, it would appear that the UGC

Regulations  were  amended  only  in  the  year  2003  and  the

Master’s  degree  awarded  upto  30.6.1989  were  treated  to  be

valid.

iii. Many  established  Universities  like  that  of  Annamalai

University across the country, having conducted such courses

under OUS and such degrees having been accepted by Public

Service Commission, the High Court’s judgment even in equity

should be set aside.  

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 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:

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i. Regulations framed by the UGC being statutory in nature and

in  any  event  the  constitutionality  of  the  said  Regulations

having not been challenged, the High Court’s judgment must

be held to be wholly sustainable.  

ii. In view of the fact that the Vice-Chancellor and the Chairman

DEC of  IGNOU having accepted  in  its  letter  dated 5.5.2004

that the UGC Regulations shall prevail, the contentions raised

on  behalf  of  the  appellants  must  be  held  to  be  wholly

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  Ministry  of  Human  Resource

Development  being  a  Nodal  Ministry  of  both  UGC as  also

IGNOU,  the  Regulations  having  been  made  at  its  instance,

cannot be said to be subservient to the provisions of the Open

University Act.  

iv. UGC having the requisite jurisdiction inter alia to lay down the

minimum standard, Regulations framed by it are binding on all

Universities and, thus, it would not be correct to contend that

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Open University Act shall prevail over the regulations framed

by the UGC.

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  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 Constitution of India

reads thus:

“66. Co-ordination  and  determination  of standards  in  institutions  for  higher  education  or research and scientific and technical institutions.”

‘Education’ is also in the Concurrent List;  Entry 25 whereof reads as

under:

“25. Education,  including  technical  education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”

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The Central Government as also the State Governments in exercise of

their  legislative  competence  in  terms  of  Entry  25  are  entitled  to  make

legislations.  Pursuant thereto, and in furtherance thereof, Universities like

IGNOU  had  been  enacted  by  the  Parliament  again  in  exercise  of  its

legislative competence in terms of Entry 25. UGC Act, on the other hand,

comes within the purview of Entry 66 of List I of the Seventh Schedule to

the Constitution  of  India.   It  was  enacted  to  make provision  for  the co-

ordination  and  determination  of  standards  in  Universities  and  for  that

purpose, to establish a UGC.

UGC was established by the Central Government in terms of Section

4 of the UGC Act.  Powers and functions of the Commission have been laid

down  in  Chapter  III  thereof.   Section  12  provides  for  functions  of  the

Commission; some of the relevant provisions whereof are:

“12. It  shall  be  the  general  duty  of  the Commission  to  take,  in  consultation  with  the Universities  or  other  bodies  concerned,  all  such steps as it may think fit for the promotion and co- ordination  of  University  education  and  for  the determination  and  maintenance  of  standards  of teaching,  examination  and  research  in Universities, and for the purpose of performing its functions under this Act, the Commission may--  

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... … …

(d) recommend to any University the measures necessary for the improvement of University education  and  advise  the  University  upon the  action  to  be  taken  for  the  purpose  of implementing such recommendation;  

… … ….

(i) require a University to furnish it with such information as may be needed relating to the financial  position  of  the  University  or  the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards  of  teaching  and  examination  in that  University  respecting  each  of  such branches of learning;”

Section  12A  provides  for  regulation  of  fees  and  prohibition  of

donations in certain cases.  Clause (c) whereof reads as under:

“(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 course of study;”

Section 22 provides for right to confer degrees.  Sub-Section (1) and

reads as under:

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“(1) The right of conferring or granting degrees shall be exercised only by a University established or  incorporated  by  or  under  a  Central  Act,  a Provincial  Act  or  a  State  Act  or  an  institution deemed to be a University under section 3 or an institution  specially  empowered  by  an  Act  of Parliament to confer or grant degrees.”

The Commission is empowered to make regulations by notification in

terms of Section 26, inter alia, for the following purposes:

“26(1)(e)  defining  the  qualifications  that  should ordinarily be required  of  any person to  be appointed  to  the  teaching  staff  of  the University, having regard to  the branch of education  in  which  he  is  expected  to  give instructions;

(f) defining  the  minimum  standards  of instruction  for  the  grant  of  any degree  by any University;

(g) regulating the maintenance of standards and the  co-ordination  of  work  or  facilities  in Universities.

(h) regulating  the  establishment  of  institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;”

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Section 28 mandates that every rules and regulations must 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 and for the co-ordination and determination of standards in such

systems.  

We may also notice the Statement of Objects and Reasons of the said

Act, which reads as under:

“ Despite  the  tremendous  expansion  of  the formal  system  of  higher  education  since independence,  the  pressure  on  the  system  is continuously  increasing.  Indeed,  the  system  has not  been  able  to  provide  an  effective  means  to equalize educational opportunities.  The rigidity of the system requiring, among others, attendance in classrooms  have  been  a  disincentive  to  many learners.  Moreover the combinations of subjects are  inflexible  and  are  often  not  relevant  to  the needs  of  the  learners.   This  has  resulted  in  a pronounced  mismatch  between  the  contents  of most  programmes  and  the  needs  of  the development sectors.

The  experience  of  several  developed  or developing  countries  indicate  that  distance education programmes can provide an alternative system  that  will  be  cost-effective  and  relevant, while  at  the  same  time  ensuring  effective equalization of opportunities.  Though a diversity

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of  means,  including  the  utilization  of  modern communication technology, the distance education can  provide  more  flexible  and  open  learning programmes  that  will  suit  the  needs  of  various categories  of  learners,  especially  the  weaker sections  of  society.   The  introduction  and promotion of distance education in the educational system  of  the  country  is,  therefore,  of  great significance.”

We may also notice some provisions of the Open University Act.

“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 combination of any two or more of such means;

xxx xxx xxx

3. Establishment  and  incorporation  of  the University.- (1)  There  shall  be  established  a University  by  the  name  of  “the  Indira  Gandhi National Open University”.

xxx xxx xxx

4. The objects of the University.- The objects of  the  University  shall  be  to  advance  and disseminate learning and knowledge by a diversity of means, including the use of any communication technology,  to  provide  opportunities  for  higher education  to  a  larger  segment  of  the  population and to promote the educational well being of the community  generally,  to  encourage  the  Open University and distance education systems in the educational  pattern  of  the  country  and  to  co-

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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.

5. Powers  of  the  University.- (1)  The University  shall  have  the  following  powers, namely:-

… … …

(iii) to  hold  examinations  and  confer  degrees, diplomas,  certificates  or  other  academic distinctions or recognitions on persons who have pursued a course of study or conducted research  in  the  manner  laid  down  by  the Statutes and Ordinances;

xxx xxx xxx

(v) to determine the manner in which distance education  in  relation  to  the  academic programmes  of  the  University  may  be organised;

xxx xxx xxx

(xiii) to recognise examinations of, or periods of study  (whether  in  full  or  part)  at,  other universities,  institutions  or  other  places  of higher  learning  as  equivalent  to examinations  or  periods  of  study  in  the University,  and  to  withdraw  such recognition at any time;

xxx xxx xxx

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(xxiv) to  determine  standards  and  to  specify conditions for the admission of students to courses  of  study  of  the  University  which may  include  examination,  evaluation  and any other method of testing;

xxx xxx xxx

xxx xxx xxx

5(2) Notwithstanding anything contained in any other law for the time being in force, but without prejudice to the provisions  of sub-section.  (1),  it shall be the duty of the University to take all such steps as it may deem fit for the promotion of the open  university  and  distance  education  systems and for the determination of standards of teaching, evaluation and research in such systems, and for the  purpose  of  performing  this  function,  the University shall  have such powers,  including the power to allocate and disburse grants to Colleges, whether admitted to its privileges or not, or to any other university or  institution  of higher learning, as may be specified by the Statutes.”

In terms of Section 6 thereof, IGNOU has jurisdiction over the whole

of India. Section 16 lays down the Authorities of the IGNOU, clause (7)

whereof reads as under:

“(7) Such other authorities as may be declared by the  Statutes  to  be  the  authorities  of  the University.”

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Pursuant to or in furtherance of the said power read with Statute 28

and 28(2A),  DEC had  been  constituted.   DEC has  been  declared  as  the

authority  of  the  IGNOU.   Whereas  Section  25  provides  for  the  statute

making power, Section 27 provides for the Ordinances making power.  It

has, however, been stated at the Bar that the IGNOU has neither made any

regulations nor any statutes.   

The First Schedule appended to the Open University Act provides for

the objects of IGNOU, the relevant provisions whereof read as under:

“1(e) contribute  to  the  improvement  of  the educational system in India by providing a non- formal  channel  complementary  to  the  formal system and encouraging  transfer  of  credits  and exchange of teaching staff by making wide use of  texts  and  other  software  developed  by  the University;

2. The  University  shall  strive  to  fulfil  the above objects by a diversity of means of distance and continuing education, and shall  function in co-operation  with  the  existing  Universities  and Institutions of higher learning and make full use of  the  latest  scientific  knowledge  and  new educational technology to offer a high quality of education which matches contemporary needs.”

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

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regulations.   A notification in this  behalf  was published by the  UGC on

25.11.1985.  It, however, was given effect from 1.1.1986.   

We may notice some of the provisions of 1985 Regulations.

“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 record, he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 21 years on July 1 of the year of admission.

(2) No student shall be eligible for the award of the  first  degree  unless  he  has  successfully completed a three year course; this degree may be called the B.A./B.Sc./B.Com. (General/  Honours/ Special) degree as the case may be:

Provided that no student shall be eligible to seek  admission  to  the  Master’s  Course  in  these faculties,  who  has  not  successfully  pursued  the first Degree Course of three years duration:

Provided  further  that,  as  a  transistory measure  where  the  universities  are  unable  to change  over  to  a  three  year  degree  course,  they may award a B.A./B.Sc./B.Com. (Pass) degree on successful completion of two years course, but that no  student  of  this  stream  shall  be  eligible  for admission  to  the  Master’s  course  unless  he  has undergone  a  further  one  year  bridge  course  and passed  the  same.   The  three  year  degree  course after 10+2 stage should in no case be termed as B.A./B.Sc./B.Com. (Pass) degree.”

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6. Information.-  Every  University  providing instruction through non-formal/distance education shall furnish to the University Grants Commission information  relating  to  the  observance  of  these Regulations  in  the  form  prescribed  for  the purpose.  The information shall be supplied to the University Grants Commission within 60 days of the close of the academic Year.

7. The  University  Grants  Commission  shall have the right to grant relaxation to a university in regard  to  the  date  of  implementation  or  for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the regulations on the merit of each case.”

Regulations 6 and 7 were renumbered as  Regulations  7 and 8 at a

later stage.  

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

communication  on or  about  25.11.1988 stating  that  the degrees/diplomas

awarded by the Universities established inter alia by a State Legislature will

22

stand automatically recognized for  the purpose of  employment under  the

Central Government  

19. Indisputably, appellant - University established a separate Directorate

for Distance Education Programme offering different courses of studies. It,

however, started functioning in the year 1991.  Offering courses of studies

under the OUS is said to be in line with the one followed by the IGNOU in

terms whereof anyone who had completed Plus Two (+2) or undergone the

preparatory course and passed the written test become eligible to join the

undergraduate programme of his or her choice.  Similarly, those who had

undergone the preparatory course and written test and was of 21 years of

age  and  above  became eligible  for  undertaking  the  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 through the OUS were also adopted and followed by various

other Universities in India. It is stated that UGC was being apprised of the

activities  of  the  appellant  -  University  in  regard  to  instructions/courses

offered by it through the non-formal/distance education including the OUS

in  terms  of  Regulation  6 of  the  1985  Regulations.   The  Government  of

Tamil Nadu allegedly at the request of the appellant – University and on the

basis of the recommendations made by a Committee constituted by them for

23

the  aforementioned  purpose  directed  that  the  bachelor  and  postgraduate

degrees and diplomas awarded by the Open Universities be treated on par

with those awarded under regular stream for any appointment to the post in

public service.   

20. Indisputably,  the  fact  that  the  appellant  –  University  had  been

granting  postgraduate  degrees  to  the  candidates  concerned although they

had not completed three years’ course in violation of the Regulation 2 of the

1985 Regulations came to the notice of the UGC as also IGNOU officials.

A meeting was held in March 2004.  It was agreed in the said meeting that

the admission to the Masters’ Degree Programme under the OUS without

requiring the three years graduate degree qualification be discontinued with

effect from July, 2004 as would appear from a letter issued by the IGNOU

to the Vice-Chancellor  of the appellant – University, the relevant portion

whereof reads as under:

“In the meeting, both the undersigned as Chairman DEC  and  Chairman  UGC  had  emphasized  the need  to  discontinue  the  Master’s  Degree Programme  without  requiring  3  years  graduate degree qualification under Open education stream, which is in practice in some Universities of Tamil Nadu.

We  drew  your  kind  attention  to  the  UGC regulation 1985 regarding the minimum standard of  instructions  for  the  grant  of  the  first  degree

24

through non-formal/distance  education  dated  25th November,  1985  according  to  which  no  student shall be eligible to seek admission to the Master’s Degree  Programme who  has  not  completed  first degree course of three years duration.  This clearly stipulates that the practice of admitting students of Master’s  Degree  Programme  who  have  not undergone  3  years  undergraduate  programme successfully is against the provisions of the above regulation.  In view of this,  it  was agreed in the meeting of March 11, 2004 that new admission to the  Master’s  Degree  Programme  under  open education  scheme  as  prevailing  in  some Universities in Tamil Nadu should be discontinued with effect from the forthcoming session starting from July 2004.  I would feel grateful to receive your confirmation on this matter.”

21. It,  however,  appears  that  the  degrees  obtained  after  1.3.1995  upto

20.6.2007 have been recognized by the DEC as would appear from a letter

issued by the said DEC dated 21.7.2008, which reads as under:

“This has reference to your application requesting for  post-facto  recognition  of  Distance  Education Council for programmes offered through distance mode  by  Directorate  of  Distance  Education  of your university.

In this connection,  we would like to inform you that  based  on  the  recommendation  of  the  expert committee  that  visited  your  university,  the Chairman,  Distance  Education  Council  has accorded post-facto approval to your university for programmes offered through  distance  mode with effect  from  1  st   March,  1995  to  academic  year   2006-2007.  Prior  to  March  1995,  there  was  no system for  giving  recognition  to  correspondence

25

courses  or  distance  education  programmes  and therefore the issue of post-facto approval for such courses  during  that  period  does  not  arise.   The certificates  issued  by  the  university  stand automatically recognized if they were approved by the relevant authorities of the university.  

Further, we would also like to inform that, it is the responsibility of the university to follow the norms prescribed by the concerned regulatory bodies or seek  their  recognition  for  professional/technical programme/s  as  per  the  requirements.   Getting approval  of  concerned  statutory  apex  body  for relevant  programme/s  will  be  the  sole responsibility  of  the   university.   The  territorial jurisdiction for offering distance education would be as per the Acts and Statutes of your university.

(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.

Before, however, determining the aforementioned question, we may

take  note  of  some correspondences  also  as  declared  by  the  UGC in  its

counter affidavit.  

The UGC in its  letter No.F.1-75/91 (CPP) dated 30.12.1991 to the

Registrar of various Universities regarding application of UGC Regulations

26

1985, informed them that for admitting candidates in courses for which the

First degree was the minimum qualification. the universities may not insist

upon  the  three  years  duration  for  the  first  degree  course  in  respect  of

candidates who had obtained their First Degree prior to 1985.

Thereafter,  UGC vide its  D.O.  letter  No.  F.11-4/92  (CPP-II)  dated

24.04.1996 informed the Universities of its decision regarding the validity

of  one  year  degree  course  (one-sitting)  equivalent  to  three  years  regular

course of the first degree.  The Commission communicated its decision on

the said matter:

“1. According  to  the  UGC  Regulations  of minimum standards,  both  formal  and non-formal degree courses must be of three years duration.

2. The  undergraduate  programme  has  been generally accepted as a three years programme in most of the universities.   However,  it  was noted that in some States, the Universities offer a two- year  degree  course  after  10+2.   However,  such students  are  not  eligible  for  admission  to  the Master’s degree programme.

3. It was desired that the UGC regulations of minimum  standards  for  formal  as  well  as  non- formal education be circulated to the universities for compliance.

4. It  was  decided  that  the  requirement  for  a three years degree course should also be notified.  

27

5. No private candidate should be permitted to appear for an examination.”

It in the said letter also asked the universities to ensure that the above

mentioned decisions be scrupulously followed by them.

In continuation of the said office letter, the UGC, thereafter vide letter

F.11-4/92 (CPP-II) dated 14.03.1997 informed the Vice Chancellor’s of the

Universities as under.

“The  degrees  of  the  candidates  enrolled  for the one time Bachelor’s degree programme, upto the year,  1995-96 may be treated  as  valid.   The degree  of  the  candidates  declared  valid  may  be treated  at  par  with  other  degrees  of  the  same university for all purposes including admission to higher degrees and employment”.

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-I)  dated  1st

February, 1998 informed the registrars of various universities that:

“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

28

onwards and the students  already registered may be allowed to complete their course by 30th June, 1999, and the degree awarded to these candidates upto that period may be treated as valid”.

UGC  despite  requests  and  representations  received  from  various

persons  reiterated  its  earlier  decision  regarding  the   validity  of

M.A./M.Sc./M.Com. Degree (One Sitting) in its letter No. F.1-30/96 (CPP-

II) dated 23.07.1998 to the Registrar of the Universities.

Again after considering a number of representations/complaints from

various persons, the U.G.C. vide its letter dated 30-06-1999 addressed to the

universities reiterated that  the candidates who had completed  their B.A.

under one sitting during the year 1998-99 may be treated as valid.  As per

the letter, the said degrees were to be treated valid for all purposes including

admission to higher degrees and for employment purposes.  It also informed

the universities that any violation of the said direction would be severely

dealt with.   

The  question  as  to  whether  Regulation  2  is  repugnant  to  the

provisions of the Open University Act must, therefore, be considered in the

aforementioned context.   

29

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 25 of List III thereof. The question of repugnancy of

the provisions of the said two Acts, therefore, does not arise.  It is true that

the statement of objects and reasons of Open University Act shows that the

formal system of education had not been able to provide an effective means

to  equalize  educational  opportunities.   The  system is  rigid  inter  alia  in

respect  of  attendance  in  classrooms.   Combinations  of  subjects  are  also

inflexible.   

Was the alternative system envisaged under the Open University Act

was in substitution of the formal system is the question. In our opinion, in

the matter of ensuring the standard of education, it is not.  The distinction

between a formal system and informal system is in the mode and manner in

which education is  imparted.   UGC Act was enacted for effectuating co-

ordination and determination of standards in Universities.  The purport and

object for which it was enacted must be given full effect.  The provisions of

the UGC Act are binding on all Universities whether conventional or open.

Its powers are very broad.  Regulations framed by it in terms of clauses (e),

(f), (g) and (h) of sub-Section (1) of Section 26 are of wide amplitude.  They

apply  equally  to  Open  Universities  as  also  to  formal  conventional

30

universities. In the matter of higher education, it is necessary to maintain

minimum  standards  of  instructions.   Such  minimum  standards  of

instructions are required to be defined by UGC.  The standards and the co-

ordination of work or facilities in universities must be maintained and for

that purpose required to be regulated.  

The powers of UGC under Sections 26(1)(f)  and 26(1)(g) are very

broad in  nature.   Subordinate  legislation  as  is  well  known when validly

made  becomes  part  of  the  Act.   We have  noticed  hereinbefore  that  the

functions of the UGC are all pervasive in respect of the matters specified in

clause (d) of sub-section (1) of Section 12A and clauses (a) and (c) of sub-

section  (2)  thereof.   Indisputably,  as  has  been contended by the  learned

counsel  for the appellant  as  also the learned Solicitor  General  that  Open

University Act was enacted to achieve a specific object.  It opens new vistas

for imparting education in a novel manner.  Students do not have to attend

classes  regularly.   They have  wide  options  with  regard  to  the  choice  of

subjects  but  the  same,  in  our  opinion,  would  not  mean  that  despite  a

Parliamentary Act having been enacted to give effect to the constitutional

mandate  contained  in  Entry 66  of  List  I  of  the  Seventh  Schedule  to  the

Constitution of India, activities and functions of the private universities and

open universities would be wholly unregulated.   

31

It  has  not  been denied  or  disputed  before  us  that  in  the matter  of

laying down qualification of the teachers, running of the University and the

matters provided for under the UGC Act are applicable and binding on all

concerned.  Regulations framed, as noticed hereinbefore, clearly aimed at

the Open Universities.  When the Regulations are part of the statute, it is

difficult to comrehend as to how the same which operate in a different field

would  be  ultra  vires  the  Parliamentary  Act.   IGNOU has  not  made any

regulation; it has not made any ordinance.  It is guided by the Regulations

framed by the UGC.  The validity of the provisions of the Regulations has

not  been  questioned  either  by IGNOU or  by the  appellant  –  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.  

24. The  amplitude  of  the  provisions  of  the  UGC  Act  vis-à-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.   

32

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  powers  of  legislation  but  'fields'  of legislation. Harakchand v. Union of India [(1970) 1  S.C.R.  479  at  p.489].  In  State  of  Bihar  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 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 Officer and Ors. v. K.P. Abdulla Bros [(1971) 2 S.C.R. 817] that an entry confers power upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground  that  while  enacting  legislation,  provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a series of decisions  this  Court  has  opined  that  if  an enactment  substantially  falls  within  the  powers expressly conferred by the Constitution upon the legislature  enacting  it,  it  cannot  be  held  to  be invalid merely because it  incidentally encroaches on matters assigned to another legislature.”

33

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  of  standards  in institutions  for  higher  education  or  reach  and scientific  and  technical  institutions."  Item 25  of List III conferred power upon Parliament and the State legislatures to enact legislation with respect to "vocational and technical training on labour". A six-Judge  bench  of  this  Court  observed  that  the validity  of  State  legislation  on  the  subjects  of University  education  and  education  in  technical and scientific institutions falling outside Entry 64 of List I as it then read (that is to say, institutions for  scientific  or  technical  education  other  than those financed by the Government of India wholly or in part and declared by Parliament by law to be institutions  of  national  importance)  had  to  be judged  having  regard  to  whether  it  impinged on the field reserved for the Union under Entry 66. In other  words,  the  validity  of  the  State  legislation depended  upon  whether  it  prejudicially  affected the coordination and determination of standards. It did not depend upon the actual existence of union legislation  in  respect  of  coordination  and determination  of  standards  which  had,  in  any event, paramount importance by virtue of the first part of Article 254(1).”

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:

34

“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  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  include  power  to  do  all  things which are necessary to prevent what would make "coordination" either impossible or difficult. This power  is  absolute  and  unconditional  and  in  the absence of any valid compelling reasons, it  must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict  with  the  Central  legislation  though  the former  is  purported  to  have  been  made  under Entry  25  of  the  Concurrent  List  but  in  effect encroaches upon legislation including subordinate legislation made by the center under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If  there  is  a  conflict  between  the  two legislations, unless the State legislation is saved by the provisions  of  the main part  of  Clause (2)  of Article 254, the State legislation being repugnant to  the  Central  legislation,  the  same  would  be inoperative.

(iv) Whether  the  State  law  encroaches  upon Entry 66 of the Union List or is repugnant to the

35

law  made  by  the  center  under  Entry  25  of  the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

(v) When  there  are  more  applicants  than  the available situations/seats, the State authority is not prevented  from laying  down higher  standards  or qualifications than those laid down by the center or the Central authority to short-list the applicants. When  the  State  authority  does  so,  it  does  not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.

(vi) However,  when  the  situations/  seats  are available  and  the  State  authorities  deny  an applicant the same on the ground that the applicant is  not  qualified  according  to  its  standards  or qualifications,  as  the  case  may be,  although  the applicant  satisfies  the  standards  or  qualifications laid  down  by  the  Central  law,  they  act unconstitutionally.  So  also  when  the  State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements  laid  down by the  central  authority, the State authorities act illegally.”

In  State of  A.P.  vs.  K. Purushotham Reddy & ors. [(2003) 9  SCC

564], this Court held:

“19. The conflict in legislative competence of the Parliament  and  the  State  Legislatures  having regard to Article  246 of the Constitution of India must be viewed in the light of the decisions of this Court which in no uncertain terms state that each

36

Entry  has  to  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 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. 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 determination of standards inter alia for higher education. Entry 25 of List III deals with broader subject, namely, education. On a conjoint reading of  both  the  entries  there  cannot  be  any  doubt whatsoever  that  although  the  State  has  a  wide legislative  field  to  cover  the  same  is  subject  to entry 63, 64, 65 and 66 of List I. Once, thus, it is found that any State Legislation does not entrench upon  the  legislative  field  set  apart  by Entry  66, List I of the VII Schedule of the Constitution of India, the State Act cannot be invalidated.”

UGC Act, thus,  having been enacted by the Parliament in terms of

Entry  66  of  List  I  of  the  Seventh  Schedule  to  the  Constitution  of  India

would prevail over the Open University Act.  

37

25. With  respect,  it  is  difficult  to  accept  the  submissions  of  learned

Solicitor  General  that  two  Acts  operate  in  different  fields,  namely,

conventional  university  and  Open  University.   UGC  Act,  indisputably,

governs Open Universities also.  In fact, it has been accepted by IGNOU

itself.  It has also been accepted by the appellant – University.  

Reliance placed by Mr. K. Parasaran on Guru Nanak Dev University

(supra),  in  our  opinion,  is  not  apposite.   The  question  which  arose  for

consideration therein was as to whether Guru Nanak Dev University was

entitled not to treat the degrees awarded by IGNOU as it is not equivalent to

three years degree course.  Even therein it was noticed:

“…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  the

Regulations  which are imperative  in  character.   The question,  as noticed

hereinbefore, before this Court therein was the question of equivalence.  It

has  been  noticed  that  the  appellant  –  University  did  not  wish  to  treat

correspondence courses and distance education courses as being the same.

It was stated to be a matter of policy.  Observations which have been made

for holding the degrees granted by appellant – University as valid must be

38

considered  keeping  in  view  the  question  involved  therein,  namely,

equivalence of  degree and not  any other  question.   The questions  which

have been posted before us did not fall for its consideration.  The mandatory

regulations were also not brought to its notice.  We, therefore, are of the

opinion that  Guru Nanak Dev University (supra) has no application to the

facts of the present case.  

27. This Court in  Osmania University Teachers Association  vs.  State of

Andhra Pradesh & Anr. [(1987) 4 SCC 671], held as under:

“14. Entry  25  List  III  relating  to  education including  technical  education,  medical  education and  Universities  has  been  made  subject  to  the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List HI should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive  responsibility  of  the  Central Government  to  co-ordinate  and  determine  the standards  for  higher  education.  That  power includes  the  power  to  evaluate,  harmonise  and secure  proper  relationship  to  any  project  of national  importance.  It  is  needless  to  state  that such a coordinate action in higher education with proper  standards,  is  of  paramount  importance  to national progress. It is in this national interest, the legislative field in regard to 'education' has been

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distributed  between  List  I  and  List  III  of  the Seventh Schedule.

15. The  Parliament  has  exclusive  power  to legislate with respect to matters included in List I. The State  has  no  power  at  all  in  regard to  such matters.  If  the  State  legislates  on  the  subject falling within List I that will be void, inoperative and unenforceable.”

xxx xxx xxx

30. The Constitution  of  India vests  Parliament with exclusive authority in regard to co-ordination and determination of standards in institutions for higher education. The Parliament has enacted the U.G.C.  Act  for  that  purpose.  The  University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a high standard in  the Universities.  Democracy depends for  its  very  life  on  a  high  standards  of  general, vocational  and  professional  education. Dissemination  of  learning  with  search  for  new knowledge  with  discipline  all  round  must  be maintained at all costs. It is hoped that University Grants  Commission  will  duly  discharge  its responsibility to the Nation and play an increasing to role  bring  about  the  needed transformation in the academic life of the Universities.”

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 through non-formal/distance education

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relating to the observance thereof by itself, in our opinion, would not satisfy

the legal requirement.  It is one thing to say that informations have been

furnished but only because no action had been taken by UGC in that behalf,

the same would not mean that an illegality has been cured.  The power of

relaxation is a statutory power.  It can be exercised in a case of this nature.

Grant  of  relaxation  cannot  be  presumed  by  necessary  implication  only

because  UGC  did  not  perform  its  duties.   Regulation  2  of  the  1985

Regulations being imperative in character,  non compliance thereof would

entail its consequences.  The power of relaxation conferred on UGC being

in regard the date of implementation or for admission to the first or second

degree courses or to give exemption for a specified period in regard to other

clauses  in  the  regulation  on  the  merit  of  each  case  do  not  lead  to  a

conclusion that such relaxation can be granted automatically.  The fact that

exemption is required to be considered on the merit of each case is itself a

pointer to show that grant of relaxation by necessary implication cannot be

inferred.   If  mandatory provisions  of  the  statute  have  not  been complied

with,  the  law  will  take  its  own  course.   The  consequences  will  ensue.

Relaxation, in our opinion, furthermore cannot be granted in regard to the

basic  things  necessary  for  conferment  of  a  degree.   When  a  mandatory

provision  of  a  statute  has  not  been  complied  with  by an  Administrative

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Authority,  it  would  be  void.   Such  a  void  order  cannot  be  validated  by

inaction.  

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  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 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.   

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 Open University Act.  Regulations were framed at a

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later point of time.  Indisputably, the regulations embrace within its fold the

matters  covered  under Open University Act  also.   Submission of  Mr.  K.

Parasaran  that  in  terms  of  sub-section  (2)  of  Section  5  of  the  Open

University  Act  a  non obstante  clause  has  been  created  and,  thus,  would

prevail  over the earlier Act cannot also be accepted.  Apart from the fact

that in this case repugnancy of two Acts is not in question (in fact cannot be

in question having been enacted by the Parliament and a State in terms of

the provisions of the concurrent list) the non obstante clause contained in

the Open University Act will be attracted provided the statutes operate in

the same field.   UGC Act,  as  noticed  hereinbefore,  operates  in  different

field.   It  was  enacted  so as  to  make provision  for  the  co-ordination  and

determination of standards in Universities and for that purpose, to establish

a University Grants Commission.  Its directions being binding on IGNOU,

sub-section (2) of Section 5 of the Open University Act would not make the

legal position otherwise.  Reliance has been placed upon a decision of this

Court in  Indian Express Newspapers Pvt. Ltd.  vs. Union of India [(985) 1

SCC 641), wherein it was opined that subordinate legislation must yield to

plenary legislation.  

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The same legal principle has been stated recently in Bombay Dyeing

&  Mfg.  Co.  Ltd.  (3) vs.  Bombay  Environmental  Action  Group  &  ors.

[(2006) 3 SCC 434], wherein this Court held:

“104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept  the  submissions  made  on  behalf  of  the learned  Counsel  appearing  on  behalf  of  the Appellants  that  the  courts  cannot  exercise  their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way  of  subordinate  legislation,  the  State  gives effect  to  its  legislative  policy.  Such  legislation, however, must not be ultra vires the Constitution. A subordinate  legislation  apart  from being  intra vires  the  Constitution,  should  not  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.”

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  is  correct  in

rendering the opinion in the manner it did in its judgment.   

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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 India.  Writ petitioners – respondents has

moved the High Court at the earliest possible opportunity.  It is a case of

promotion.  It is not a case of fresh entry in services.  Our judgment would

not affect the service of appellant Ramesh.  He cannot only be promoted to

the post of Principal of the Institute.  Even in the earlier round of litigation,

the Madras High Court 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 particular, when the stand of the University Grants Commission is clear that on the  date  when  the  appellant  obtained  his  M.A. Degree, it was possible for a person who did not have the basic degree to obtain the M.A. degree, the order appointing the appellant as the principal cannot be 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 Article 142 can be invoked.   

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34. With the aforementioned reasons, we find no merit in these appeals.

The appeals are dismissed accordingly.  No costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

NEW DELHI; FEBRUARY 25, 2009

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