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CASE NO.: Appeal (civil)  2698 of 2007

PETITIONER: Kurmanchal Inst. Of Degree & Diploma & Ors

RESPONDENT: Chancellor, M.J.P. Rohilkhand Univ. & Ors

DATE OF JUDGMENT: 17/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.     2698             OF 2007 [Arising out of  SLP (Civil) No. 5023 of 2006] W I T H CIVIL APPEAL NO.       2699           OF 2007 [Arising out of  SLP (Civil) No. 9522 of 2006]

S.B. SINHA, J :          1.      Leave granted.

2.     Kurmanchal Institute of Degree and Diploma is a study centre.  It is  recognized by Mahatma Jyotiba Phule Rohilkhand University (for short "the  University").  It was constituted in the year 1975 by issuance of a  notification under Section 4(1-A) of the Uttar Pradesh State Universities  Act, 1973 (for short "the Act") The State, however, is yet to make the first  ordinance for the University.

3.      Section 5 of the Act deals with territorial exercise of powers providing  that the powers conferred on each University shall be exercisable in respect  of the area for the time being specified against it in the Schedule.  The  University is to exercise its jurisdiction within the limits of districts Badaun,  Bareilly, Bijnor, Jyotiba Phule Nagar, Moradabad, Pilibhit, Rampur and  Shahjahanpur in terms of Entry 7 of the Schedule appended to the Act

4.      The Executive Council of the University was constituted in terms of  Section 51 of the Act.  The power to make ordinance is contained in Section  51 of the Act, clauses (a), (b) and (h) of Section 51(2) whereof read as  under:

"(2) Without prejudice to the generality of the  provisions of sub-Section (1), the Ordinance shall  provide for the following matters, namely-

(a) the admission of students to the University and  their enrolment and continuance as such; (b) the courses of study to be laid down for all  degrees, diplomas and other academic distinctions  of the University;

***                     ***                     *** (h) all matters relating to correspondence courses  and private candidates;"

5.      Section 52 of the Act provides for the manner in which the ordinance  is to be made.  Sections 52(2) and 52(2-A) of the Act read as under:

"(2) The First Ordinances of the Universities of

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Kumaun and Garhwal and of any other University  to be established after the commencement of this  Act shall be made by the State Government by  notification in the Gazette, (2-A) Until the First Ordinances of the Purvanchal  University are made under sub-section (2), the  Ordinances of the University of Gorakhpur, as in  force immediately before the establishment of the  said University, shall apply to it subject to such  adaptations and modifications as the State  Government may, by notification, provide."

6.      We may at this stage notice the facts of the case.   

       In its meeting on 1.07.2003, the Academic Council granted  permission to start ’distance education’.  By a letter dated 17.07.2003, the  Vice-Chancellor of the University sought permission to start courses through  Distance Education.  On 1.08.2003, the Registrar of the University sent a  letter to the Personal Secretary of the Chancellor enclosing therewith a copy  of the draft ordinance for launching Degree, Diploma and Certificate  Courses through distance education for obtaining his approval.  The  Ordinances governing Distance Education programme were framed in  exercise of the power conferred under Section 52 of the Act.  The Registrar  of the University by a letter dated 27.08.2003 sought permission from the  Principal Secretary, Higher Education to start the distance education  programme.  A letter dated 20.01.2004 was issued from the Office of the  Chancellor to the Principal Secretary, Higher Education, State of U.P.  wherein it was stated:

"As per section 42(2) of the Uttar Pradesh State  University Act there is provision of notification of  the first ordinance of the University by the  Government, but the first ordinance of Mahatma  Jyotiba Phule Rohilkhand University has not been  notified by the Government till now.

       Therefore, in the circumstances mentioned  above by sending the photo copy (with annexures)  of the ordinance of Mahatma Jyotiba Phule  Rohilkhand University on the above cited subject I  am directed to state that after examining, the said  ordinance may be included in the first ordinance of  Mahatma Jyotiba Phule Rohilkhand University and  take necessary action."

7.      On 24.02.2004, a letter was sent by the Joint Secretary, Higher  Education \026 I, U.P.Government, to the Registrar of the University wherein  approval to include the ordinance of Distance education was granted.  In  reply thereto a letter dated 25.02.2004 was sent by the Registrar of the  University with the request that the ordinances as sent by the University may  be included in the First Ordinances as Chapter No. XXII which is to be  framed by the State Government.  By a letter dated 19.03.2004, the State  Government granted approval to run the diploma and certificate courses of  the University through distance education mode.  Since the degree course  was not included in the letter issued by the State Government dated  05.04.2004, the Registrar of the University requested the State Government  to grant permission for starting distance programme under distance  education mode.

8.      The Chancellor, as noticed hereinbefore, disapproved the proposal for  starting a new course in distance education, by reason of the impugned order  dated 12.08.2005, opining:

"From the above analysis, it is clear that the

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distance education programme started by Mahatma  Jyotiba Phule Rohilkhand University, Bareilly is  wholly irregular and irresponsible work, which is  cancelled with immediate effect and the University  is directed that all the activities related to these  programmes be closed immediately.  It is required  of the University that the students who have got  enrolled for these programmes the correspondence  courses be started in respect of those students and  the students who do not want to participate in the  correspondence courses, their fee be refunded.  In  addition to this the Vice Chancellor, Kulsachiva  and Financial Controller and other concerned  officers and teachers of Mahatma Jyotiba Phule  Rohilkhand University, Bareilly are warned that  such type of illegal programme should not be  started by the University in future."

9.      A writ petition was filed questioning the legality of the said order by  the appellants herein which was marked as Civil Misc. Writ Petition No.  75902 of 2005.  A Division Bench of the Allahabad High Court by an order  dated 20.12.2005 dismissed the said writ petition relying on a judgment and  order dated 25.07.2005 passed by another Division Bench of the said Court  in Civil Misc. Writ Petition No. 47825 of 2005 titled Allahabad College of  Engineering and Management & Ors. v. His Excellency The Chancellor,  M.J.P. Rohilkhadn & Ors.   In the said judgment, the Division Bench inter  alia opined that in absence of the first ordinance issued by the State, the  initiation of the distance education programme was illegal.   

10.     The Chancellor in his order dated 16.04.2005 noticed that various  universities established under the provisions of the Act had been conducting  courses under the distance education programme without any ordinance  having been made in this regard and it was noticed by the Chancellor that  many Universities have opened such study centres where regular courses  had been going on. The Chancellor, therefore, issued a direction for stopping  such courses which were being run without following the procedure  prescribed by law and the Universities were directed to furnish information  within a week.  The Chancellor by an order dated 13.06.2005 further  directed that in spite of specific directions contained in the order dated  16.04.2005 some of the universities not only continued with the courses but  others had even issued fresh advertisements which according to the learned  Chancellor was a serious matter and as such a direction to the effect that the  running of such courses should be immediately stopped and the study  centres should also be closed was issued.  The Chancellor further noticed  that such study centres had been opened by various universities wherefor an  extreme step was necessary to be taken.   

11.     The Division Bench of the High Court opined that in certain  circumstances the Chancellor has the power to act suo motu and the  circumstances mentioned in his orders were exceptional ones writing  invocation thereof.

12.     Ms. Sunita Aggarwal, learned counsel appearing on behalf of the  appellants, inter alia would submit that as the appellants were not parties in  the earlier writ proceedings, the decision rendered therein was not binding  on them.  Had the appellants been parties, it was urged, they could have  shown that all the necessary steps for making an ordinance had been taken.   The University, the learned counsel would contend, having granted  permission to start the courses pursuant whereto and in furtherance whereof  students having been admitted, it will cause a great hardship to the students  if they are forced to stop their studies and switch over to the distance  education programme.

13.     Mr. Ravi Prakash Mehrotra, learned counsel appearing on behalf of  the respondents, on the other hand, submitted that such study centres cannot

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be legally permitted to be opened beyond the territorial jurisdiction of the  University.  It was also submitted that as use of such study centres has  financial aspects, a previous approval of the State was also required to be  taken in terms of Section 52(3)(c) of the Act.

14.     The learned counsel would contend that in any event this Court should  take a holistic view of the matter as only 150 students have not opted for  distance education course in terms of the order passed by the Chancellor and  they are in the first semester only.  It was pointed out that there exists a  distinction between a diploma course, on the one hand, and a degree course  on the other.  Although no objection certificate (NOC) has been granted to  certificate courses, no such permission had been granted for degree courses.

15.     The University Grants Commission, which has been constituted in  terms of Entry 66, List I of the Seventh Schedule of the Constitution of  India, has framed regulations in the year 1985 relating to distance education,  from a perusal whereof it would appear that the study centres are such which  are established for helping the students who are undergoing distance  education course.

16.     It appears that in order to satisfy itself as to whether the study centre  of the appellants have sufficient infrastructure or not, this Court appointed a  Committee.  The Committee submitted its report wherein it was inter alia  stated:

"3) The Committee noted that KIDDE does not  offer any academic activity of its own and  supporting either distance education programmes  of other universities or running training  programmes for private institutions with help of  guest or invited faculty on pay basis. 4) The Committee, based on the availability of  academic facilities and infrastructure, is of the  opinion that KIDDE has basic amenities to serve  as a study centre for delivering distance education  programmes.  The laboratory facilities, however,  have to conform to curriculum requirements. ***                     ***                     *** 7) The Committee noted that the State Government  had restricted MJPRU distance education  programmes only to certificates and diplomas  without any specific mention on the jurisdiction to  offer these programmes, where as per the Act of  the University, the jurisdiction of the University is  limited to 7 districts of Uttar Pradesh.  University  by its own offered distance education programmes  through 85 study centres of which 40 centres  located out of the State.  University also offered  Degree programmes through distance mode that  too in some disciplines not available in campus in  formal stream."

17.     Although we are inclined to agree with the learned counsel appearing  on behalf of the appellants that for all intent and purport the requirements of  law for making an ordinance by the Executive Council of the University had  been done pursuant whereto new courses could be opened, we are, however,  unable to persuade ourselves to accept the contention that such study centres  should be permitted to be operated beyond the territorial jurisdiction of the  University.  Section 5 of the Act clearly states in regard to the territorial  jurisdiction of the University.  In terms of the Schedule appended to the Act,  the territorial jurisdiction of the University is confined only to seven  districts, Nainital not being one of them.  Each University in the country  which is recognized under the University Grants Commission Act must have  their own territorial jurisdiction save and except for the Central Universities  or specified in the Legislative or Parliamentary Act.  

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18.     The submission of the learned counsel that for the purpose of running  a distance education course, extra-territorial activities must be carried out  may not be entirely correct.  It is one thing to say that the University takes  recourse to the correspondence courses for conferring degrees or diplomas  but it would be another thing to say that study centres would be permitted to  operate which requires close supervision of the University.  In a study  centre, teachers are appointed, practical classes are held and all other  amenities which are required to be provided for running a full-fledged  institution or college are provided.  Such an establishment, in our opinion,  although named as a study centre, and despite the fact that the course of  study and other study materials are supplied by the University cannot be  permitted to be established beyond the territorial jurisdiction of the  University.  Nainital is outside the territorial jurisdiction of the University.   In fact it is not situated in the State of U.P. and, thus, beyond the provisions  of the Act.

19.    The submission of the learned counsel that the UGC Regulations 1985  provides for study centre of this nature cannot be countenanced.  The UGC  Regulations being a subordinate legislation must be read with the principal  Act.  The subordinate legislation will be ultra vires if it contravenes the  provisions of the principal Act. [See Vasu Dev Singh & Ors. v. Union of  India & Ors. 2006 (11) SCALE 108]  A statutory authority, it is well known,  must act within the four-corners of the statute.  A’fortiori it has to operate  within the boundaries of the territories within which it is to operate under the  statute.  Such territorial jurisdiction of the University must be maintained as  otherwise a chaos would be created.  If distance education of such a nature is  to be encouraged, the only course would be to suitably amend the provisions  of the Act.

20.     We are not oblivious that in certain situations the territorial  jurisdiction in relation to a University may not be strictly enforced as was  done in the case of Sushanta Tagore & Ors. v Union of India and Others  [(2005) 3 SCC 16] but in the said matter, this Court was concerned with a  totally different situation.   

21.     We, thus, are of the opinion that in this case we need not go into the  other submissions raised by Ms. Aggarwal.

22.     The study centres of the appellants being situated in Nainital, is  beyond the territorial jurisdiction of the respondent university.  No writ of or  in the nature of mandamus as has been prayed for in the writ petition can be  issued.  

23.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.  No costs.