UGC directs Universities to award degree within reasonable time

educational-degree

UGC has taken note of inordinate delays in awarding of degrees to the students and has directed all the Universities within 180 days of the date/s by which the student qualifies and becomes eligible for award of degree.

UGC expects that rights and entitlements of students are well regarded by the Institutions and has asked the Universities to understand that one of such fundamental entitlement and inviolable privilege of a student is award of degree in time after having successfully completing a program and simultaneously it is also one the most fundamental and primary duties of a University.

In a communication issued to the Universities, UGC upon receiving representations and references regarding some universities, which are not awarding degrees in time to the students enrolled in different programs of study offered by them, has brought to the Notice of the Universities provision contained in Regulation 4.4 of UGC (Grant of Degrees and other award by Universities) Regulations, 2008, which reads as under:

“The Degree award date/s shall be within 180 days of the date/s by which the student are expected to qualify and become eligible for them”

UGC has cautioned the Universities that withholding degree of a student who has successfully completed his tenure in the institution of his enrolment, for whatever reasons, amounts to constraining opportunities of a student and if an University is found to be indulging in the same, then it will be constrained to take punitive actions as are notified in Regulation 9 of UGC (Grievance Redressal) Regulations 2012 against the University.

EduLegaL View:

Today, we talk of Right to Services of a common citizen, Citizen Charter for disposing the grievances of a common citizen, but Education Sector is still out of scope of all these. There was a discussion about creating a repository of academic award of student after giving him a Unique ID. I do not know what happened to the same.

Submission of degree certificate, as we all know is also connected with eligibility of a student to further education and any delay in submitting the degree certificate has the potential to jeopardise his career. 180 days in any case in more than enough for completing all the formalities for awarding of degrees. Occasion for such caution should not arise at all.

It is necessary that a Uniform Student Charter is also framed defining the time within a document is handed over to a student.

Ravi Bhardwaj | mail@edulegal.in

Read the UGC Notice to the Universities:

[embeddoc url=”http://edulegal.org/wp-content/uploads/2016/05/UGC-direction-to-Universities-to-award-degree-within-180-days.pdf” download=”all” viewer=”google”]

 

UGC instructs Institutions to ensure dignity of the National Flag

Invoking National Pride, having environmental concern in mind and taking serious note of misuse of National Flag in events, UGC has asked all the Institutions to adhere strict compliance with norms to use the National Tricolour, as mandated in ‘Flag Code of India, 2002’ and ‘The Prevention of Insults to National Honour Act, 1971.

UGC has informed the Institutions that the National Flag is the symbol of our national pride and represents hopes and aspirations of the people of the country and hence should occupy a position of honor. UGC has therefore instructed the Institutions to ensure that to ensure that on important national, cultural and sports events, paper flags are used by all and are not discarded or thrown on the ground after the event.

The Institutions have also been directed to give wide publicity to discourage National Flags made of plastic, which are used in important events in place of paper flag, as these plastic flags being non biodegradable do not get decomposed easily and their disposal with dignity of the flag is a big problem.

According to the law, whoever in any public place bums, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt the Indian National Flag or any part of it, shall be punished with imprisonment for a term which may extend to three years or with fine or with both.

Accordingly, UGC has requested the Institutions to put in place an effective mechanism to create awareness for strict adherence of the provisions contained in the Act and Flag Code.

Read the UGC Notice here:

[embeddoc url=”http://edulegal.org/wp-content/uploads/2016/05/UGC-letter-reg-Flag-code-of-India-.pdf” download=”all” viewer=”google”]

 

SC: Courts should not upset Inspection Report of Expert Committee, unless malafide and perverse, imposes fine of Rs.5 Cr on a Medical College, directs MCI to prepare Standard Procedure of Inspection

 

scindia……………… Medical education must be taken very seriously and when an expert body certifies that the facilities in a medical college are inadequate, the Courts are not equipped to take a different view in the matter except for very cogent jurisdictional reasons such as mala fides of the Inspection Team, ex facie perversity in the inspection report, jurisdictional error on the part of the MCI etc.

 …….. Supreme Court

The Supreme Court while making these observations came down heavily on a medical college based in State of Odisha, Kalinga Institute of Medical Science [KIMS] and imposed a fine of Rs. 5 Crore for playing with career of several students and flouting the standards prescribed under the Regulations.

The Supreme Court was hearing a challenge by Medical Council of India against Judgement of High Court of Odisha granting interim relief to KIMS to admit and further setting aside the Report submitted by an Expert Committee, which inspected the campus and found several deficiencies and recommended that the permission should not be renewed for enhanced seats.

KIMS was initially granted permission to admit students for medical courses. It was desirous to enhance the admission intake and hence approached MCI for permission. As per the procedure, inspection was conducted by MCI Expert team, which found serious deficiencies. On consideration of the Report, MCI recommended to Central Government to deny permission to KIMS to add 50 additional seats.

Accordingly, direction was issued to KIMS not to admit any students in the second batch of MBBS course against the increased intake from 100 to 150 seats. Being aggrieved, KIMS challenged the direction before the High Court. The High Court set aside the direction and directed Central Government to reconsider the case after giving personal hearing. MCI granted personal hearing to KIMS and retained its recommendation. The High Court however, later directed Central Government to grant provisional permission to KIMS to conduct the course for the additional 50 students. Accordingly, Central Government granted provisional permission to KIMS to conduct the MBBS course against the increased intake.

Being aggrieved, MCI filed SLP in Supreme Court. MCI was granted the leave and order of the High Court was stayed. The Court also maintained status quo in the matter and requested High Court hear the pending writ petition expeditiously. High Court later directed MCI to constitute a fresh Inspection Team to inspect KIMS and verify the compliances submitted by KIMS. In fresh inspection conducted pursuant to the HC order, large numbers of deficiencies were again found at KIMS. The Expert Report was examined in detail and minutely by the High Court and the same was set aside by the High Court. The Court later allowed the College to continue with admissions.

The Supreme Court finally heard the matter. On consideration of events leading to SLP, the Court observed that, “Medical education must be taken very seriously and when an expert body certifies that the facilities in a medical college are inadequate, the Courts are not equipped to take a different view in the matter except for very cogent jurisdictional reasons such as mala fides of the Inspection Team, ex facie perversity in the inspection report, jurisdictional error on the part of the MCI etc. Under no circumstance should the High Court examine the report as an appellate body – this is simply not the function of the High Court. In the present case there was no ground made out at law for setting aside the report of the Inspection Team.” The Supreme Court did not approve the approach of High Court, which proceeded to minutely examine the Report of the Expert Committee, functioning as an Appellate Body.

The Supreme Court was also of the opinion that High Court ought to have been more circumspect in directing the admission of students by its order dated 25th September, 2015 and there was no need for the High Court to rush into an area that the MCI feared to tread. It remarked that, “Granting admission to in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved – what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty.”

 On the issue of future of students, who have already been admitted, the Supreme Court though protected the admission of the students, who have already been admitted under the Interim Order but blamed KIMS squarely for the same and hence imposed an exemplary fine of Rs. 5 Crore on KIMS for jeopardizing the career of students and for playing with the future of its students and the mess that it has created for them. The Court felt that admitting students despite rejection and seeking judicial intervention to admit students was certainly not with a charitable motive. The Court also remarked that an institution should have some responsibility towards the welfare of the students and felt that it would have been far more appropriate for KIMS to have refrained from giving admission to 50 additional students rather than being instrumental in jeopardizing their career.

mciThe Court additionally asked MCI to prepare in consultation with the Central Government prepare a Standard Operating Procedure for conducting an inspection of Medical Colleges. It also directed that to introduce transparency and accountability in the medical colleges, the report or assessment of the Inspection Team should be put up on the website of the concerned medical college as also on the website of the MCI so that potential students are aware of what is likely to be in store for them. Similarly, the decision of the Central Government on the report should be put up on the website of the concerned medical college as also on the website of the MCI.

EduLegaL View

The last fortnight at Supreme Court has all been about Medical Education. Right from Constitution of an Oversight Committee to monitor the functioning of MCI, to conducting the entrance test and now direction to prepare SoP for conducting Inspection, all have been discussed and settled.

The Central Government and MCI should rise up to the occasion and set it right to reinstate confidence in their governance of medical education in the Country.

However, I am on a different point, it is right that Courts should not generally interfere with the Reports of the Expert Committee, but there are several instances, where the Regulator itself and the Nodal Ministry interferes with the Report Expert Committee and upsets them acting on their own discretion. What about such situations … How is the interest of Institutions then safeguarded … I wish Court should have dealt with this aspect also.

Ravi Bhardwaj | mail@edulegal.in

Read the Judgement

[embeddoc url=”http://edulegal.org/wp-content/uploads/2016/05/KIMS-JUDGEMENT-MCI-1.pdf” download=”all” viewer=”google”]

 

 

 

 

 

 

 

 

Institutions must give fair opportunity to a student under inquiry, in compliance with natural justice, bias is not permissible: HC

 

………………. All universities are cradles of the nation’s future. They are, therefore, required to conduct all acts in a highly bona fide and exemplary manner. This responsibility increases exponentially when the university is a premier National Law School imparting legal education to the nation’s future lawyers. How is a student of law expected to be a patron of justice when his university is the epitome of injustice?

…….. Gujarat High Court

Gujarat-High-Court2

The writ Petitioner was studying in third year of a five year integrated LL.B. program and had challenged order passed by Gujarat National Law University [GNLU], which adjudicated alleged malpractice in examination by the Petitioner and held that exam of Quantitative Techniques given by the Petitioner, held on 2nd Nov. 2015 stands cancelled.

At around 4.25 pm, on 02.11.2015 when the exam for Quantitative Techniques was going on barely 5 minutes before the completion of the examination, one of the officials of GNLU suddenly bolted from across the examination hall and snatched the answer sheet of the Petitioner, alleging that the Petitioner was “…hiding something …”. Thereafter they sought to physically frisk the Petitioner and persisted in the said demand. However, the Petitioner objected to being physically frisked by the Respondent No.5 – who was a member of the opposite gender in the interest of modesty.

The Petitioner while being taken to the Director took his bag placed outside the examination hall and took his phone out of the bag to contact his father. It is alleged that he was threatened in unparliamentarily language of dire consequences if he attempted to contact anyone. It is also alleged that later the charge of malpractice was also changed to abuse of phone instead of “hiding something”. The phone was seized, case was inquired into and punishment was awarded to cancel his examination in the paper.

The Petitioner being aggrieved by the process approached the Director and raised serious question on the legality of the inquiry process. He also alleged that the entire process was biased and there was no compliance with natural justice. There was no response from the University. The student then approached the High Court.

A pointed contention taken on behalf of the Petitioner was that there is evident bias in the minds of the Respondents against the Petitioner. Therefore, the Petitioner could never have expected fair treatment at the hands of the Respondents. It was also argued that the Respondents conducted a fanciful inquiry with a predetermined state of mind.

This court considered the arguments tendered by the Petitioner and the Respondents and came to conclusion that the private Respondents went to great lengths to ensure that that Petitioner is cornered and victimised, and that the Petitioner did not receive the just treatment prescribed under the Rules. The Court also came to conclusion that Petitioner was not given fair opportunity to contest the evidence against him and also cross-examine the Complainant or for that to verify the Report against him. The Petitioner was never given an opportunity of being heard, nor was he permitted to inspect any material or evidence that was proposed to be used against him.

Considering the ramifications of the highly punitive action taken by the University which would have long-term negative implications on the career of the Petitioner-student and wastage of one academic year for the Petitioner, the Court quashed and set aside the order dated 03.012.2015 and directed the Respondent University to declare the result of the Petitioner for the examination.

EduLegaL View

No doubt that “natural justice” is a right flowing from our constitution and it has to be adhered to in all cases.

But in normal cases, do we expect the academic administrators to know the rule of evidence or for that rules of trial ?

An academic disciplinary proceeding cannot be compared with other inquiry proceedings. I am not talking about cases of gross violation of natural justice. But we cannot expect an academic administrator to follow the letters of law in matter of disciplinary inquiry. Suffice it to say that a notice should be issued and the student should be given full opportunity to examine the material against him. Even cross-examination except in few cases, should be limited, else a University will turn into a full fledged court premises ….

Read the Judgement:

[embeddoc url=”http://edulegal.org/wp-content/uploads/2016/05/GNLU-JUDGEMENT-1.pdf” download=”all” viewer=”google”]

 

Commercialisation of education not permissible, State can regulate admission, fees in private Institutions: SC

……….. The Constitution is primarily for the common man. Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated.

…… Supreme Court

The Supreme Court made these observations while examining the validity/vires of the provisions of the statute passed by the State Legislature, which is known as ‘Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007’ (hereinafter referred to as the ‘Act, 2007’) and Madhya Pradesh Private Medical and Dental Post Graduate Courses Entrance Examination Rules, 2009 (for short, ‘Rules, 2009’), which Act and Rules regulate primarily the admission of students in post graduate courses in private professional educational institutions and the provisions are also made for fixation of fee. In addition, the said Act and Rules also contain provisions for reservation of seats.

The challenge was made by private medical and dental colleges, which are unaided, i.e. they are not receiving any Government aid and are self financing institutions running from their own funds, initially in the High Court, which upheld the validity of these Acts and Rules. The Unaided Institutions challenged the Judgement of High Court in Supreme Court, which was heard by a Constitution Bench.

Proceedings before High Court:

The main contention of the Institutions before the High Court was that medical and dental colleges being private unaided colleges, it is their fundamental right under Article 19(1)(g) of the Constitution of India to lay down the eligibility criteria for admission and admit the students as well as fix their fee. It was also argued that private educational institutions cannot be foisted with the obligation to admit students of reserved class, which was the obligation of the State.

The High Court did not accept the contention of the Private Institutions and held that Article 19[6] of Constitution of India, permits the Government to regulate the admissions as well as fee, even of the private unaided educational institutions and that such measures saved by Article 19(6) of the Constitution as they amount to ‘reasonable restrictions’ imposed on the right of admission and fixation of fee, which otherwise vests with Private Institutions.

Summary of Judgement of the High Court is as follows:

(i) Re.: Admissions – The High Court was of the view that prescribing a Common Entrance Test for the purpose of admission to private unaided institutions are constitutional and valid since the same are in consonance with the dictum of the Constitution Bench judgment of this Court in the case of T.M.A. Pai Foundation. The High Court had held that there is no violation of the fundamental rights of the writ petitioners since the provisions constituted reasonable restriction as accepted by and, therefore, saved under Article 19(6) of the Constitution. The High Court held that the CET prescribed will ensure that the merit is maintained. It is also concluded by the High Court that sufficient material that was placed on record to establish that private unaided institutions were not able to ensure a fair, transparent and non-exploitative admission procedure.

(ii) Re.: Fee Regulation – The High Court held that the power of the Fee Regulatory Committee under the provisions was only ‘regulatory’ and the purpose of which was to empower the Committee to be satisfied that the fee proposed by the private professional institutions did not amount to profiteering or commercialisation of education and was based on intelligible factors which was not violative of the fundamental rights of the private professional institutions to charge their own fee.

(iii) Re.: Reservation – The High Court has examined the said provisions and concluded that sufficient number of seats were allotted for the unreserved category in different disciplines and subjects, and that a reasonable balance had been struck between the rights of the unreserved category candidates and the reserved category candidates.

Argument of Private Institutions in Supreme Court:

The central theme of the arguments of appellants was that by the impugned legislation the State seeks to wipe out the choice available with the appellants institutions to devise their own admission procedure and necessitate that the admission be carried out only on the basis of a CET to be conducted by the State Government or any agency appointed by it. In addition, the Act provides for the Committee to ‘determine’ and ‘fix’ the fees to be charged by the appellants and thereby completely trample the rights of the appellants to determine and charge the fee. The Act also provides for reservation in private institutions, including post-graduate courses, which the appellants submit is impermissible in light of the law laid down by this Court in the case of Ashok Kumar 21 Thakur v. Union of India & Ors.

It was their submission that right available to the appellants institutions is to devise their own admission procedure, subject to the condition that the procedure so devised ought to be ‘fair’, ‘transparent’ and ‘non-exploitative’. Thus, the rights available to the institutions under Article 19(1)(g) includes a right to admit students on a fair basis and as such the appellants can choose to admit students on the basis of the CET conducted by an association of institutions coming together (as has been provided in P.A. Inamdar) or one conducted by the State and the choice also includes to a right to admit students on the basis of the CET conducted by the Central Government. The right to choose is the right that is available to the individual institutions under Article 19(1)(g) and the impugned legislation abrogates the said right.

Observations of Supreme Court:

The Supreme Court speaking through the Constitution Bench observed as follows:

Re.: Provisions relating to Common Entrance Test:

The Supreme Court as has been held in earlier judgements, agreed that “Education”, as an “occupation” is a fundamental right which gives right to the educational institutions to admit the students and also fix the fee, at the same time, scope of such rights can be restricted and limited by appropriate legislations. While explaining the scope of this right, right to admit students and right to fix fee has been accepted as facets of this right. However, the Court again added caution thereto by mandating that admissions to the educational institutions imparting higher education, and in particular professional education, have to admit the students based on merit. For judging the merit, the Court indicated that there can be a CET. If such a power is exercised by the State assuming the function of CET, this was so recognised in T.M.A. Pai Foundation itself, as a measure of ‘reasonable restriction on the said right’.

On this background, Supreme Court was of the view that that the larger public interest warrants such a measure. The Court also considered evidences regarding malpractices, which are noticed in the CET conducted by such private institutions and concluded that in the larger interest and welfare of the students community to promote merit, add excellence and curb malpractices, provision for common entrance test is legal. The extent of restriction has to be viewed keeping in view all these factors and, therefore, the Court felt that impugned provisions, which may amount to ‘restrictions’ on the right of the appellants to carry on their ‘occupation’, are clearly ‘reasonable’ and satisfied the test of proportionality.

 Re.: Provisions in the Act Rules relating to fixation of fee

The Court observed that right to establish and manage educational institution is treated as a right to carry on ‘occupation’, which is the fundamental right under Article 19(1)(g), however cautioned that it does not entitle educational institution not to indulge in profiteering or commercialisation. It is also recognized that the educational institutions may charge the fee that would take care of various expenses incurred by these educational institutions plus provision for the expansion of education for future generation. At the same time, unreasonable demand cannot be made from the present students and their parents. For this purpose, only a ‘reasonable surplus’ can be generated.

It is, therefore, to be borne in mind is that the occupation of education cannot be treated at par with other economic activities. In this field, State cannot remain a mute spectator and has to necessarily step in in order to prevent exploitation, privatization and commercialisation by the private sector.

In order to see that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that these educational institutions keep playing vital and pivotal role to spread education and not to make money. So much so, the Court was categorical in holding that when it comes to the notice of the Government that a particular institution was charging fee or other charges which are excessive, it has a right to issue directions to such an institution to reduce the same. In our view, therefore, it is only a regulatory measure and does not take away the powers of the educational 69 institution to fix their own fee.

Provisions relating to relating to fixation of fee by setting up a Committee to oversee that institutions are not charging a fee which amounts to capitation or profiteering are reasonable restrictions and do not suffer from any constitutional vice.

NEED FOR REGULATORY MECHANISM:

 It is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided.

Holding of CET under the control of the State does not impinge this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students ‘triple test’ is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions, which are done by the educational 78 institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away.

Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee etc. is charged.

INTERIM ARRANGEMENT

The Court pending consideration of recommendation regarding issues relating to MCI, in exercise of powers of this Court under Article 142 of the Constitution decided to constitute a Committee to oversee the functioning of the MCI consisting of the following members: 1. Justice R.M. Lodha (former Chief Justice of India) 2. Prof. (Dr.) Shiv Sareen (Director, Institute of Liver and Biliary Sciences) 3. Shri Vinod Rai (former Comptroller & Auditor General of India). The said Committee will have the authority to oversee all statutory functions under the MCI Act. All policy decisions of the MCI will require approval of the Oversight Committee. The Committee will be free to issue appropriate remedial directions. The Committee will function till the Central Government puts in place any other appropriate mechanism after due consideration of the Expert Committee Report. Initially the Committee will function for a period of one year, unless suitable mechanism is brought in place earlier which will substitute the said Committee. We do hope that within the said period the Central Government will come out with an appropriate mechanism.

FINAL JUDGEMENT

In view of the above, there was no violation of right of autonomy of the educational institutions in the CET being conducted by the State or an agency nominated by the State or in fixing fee. The right of a State to do so is subject to a central law.

Once the notifications under the Central statutes for conducting the CET called ‘NEET’ become operative, it will be a matter between the States and the Union, which will have to be sorted out on the touchstone of Article 254 of the Constitution.

EduLegaL View

This Judgement is really a landmark in the history of education sector. Till now, the famous trinity of T M Pai, Islamic Academy and P A Inamdar, used to operate separately and was used conveniently. There was compelling need to analyse the proposition laid down in all the three cases and explained in a one single judgement, so that the rights of educational institutions and limitation on those rights are well defined.

I also feel that some rights have to be balanced in a manner considering convenience of a larger community, more particularly, when a larger community is involved. Rights of Educational Institutions vis-à-vis the students have been beautifully balanced by the Constitution Bench.

Ravi Bhardwaj | mail@edulegal.in

Private Institutions cannot become “commercial shops” and charge exorbitant fees in name of building fund, infrastructure fund: HC

 

……… The private institutions cannot be permitted to operate like money minting institutions.

……. Over a period of time, education has become a commodity in India. All the genres of society are so overly obsessed with education that it has devalued the real essence of education. Education is no more a noble cause but it has become a business, therefore, the paradigm shift, especially in the higher education from service to business is a matter of concern. The commercialization of education has a dreadful effect that is so subtle that it often goes unnoticed. 

 …… Educational Institutions are indulging in gross misleading advertisements. which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience. 

 …….. It is shocking that the private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time these practices are stopped forthwith and there is a crack down on all these institutions. 

…… Himachal Pradesh High Court

The Himachal Pradesh taking serious cognizance of ill practices of certain educational institution to conduct in unauthorized manner, collecting exorbitant fees and issuing misleading advertisement has directed State Government to set up a Committee to investigate all the Institutions and further directed State Government to ensure that no fees is charged in name of building fund, development fund, infrastructure fund etc.

The Judgement was passed on a petition directed against the order passed in against the Petitioner Institutions to jointly and severally refund the fees taken from the students.

The petitioner is the so called franchisee of the Sikkim Manipal University based at Sikkim and claims to be running its study centre at Shimla. The students had filed petition under Section 11 of the H.P. Private Educational Institutions (Regulatory Commission), Act, 2010 claiming refund of admission fee paid to the petitioner for MBA PGDM course, on the ground that the same was exorbitant and had never been approved either by the State Government or by the UGC. These petitions were contested by the petitioner and vide impugned order, the petitioner was directed to refund the fee.

The order was challenged on the ground that the Education Commission had no jurisdiction to entertain the petition, as the dispute relating to Sikkim Manipal University was beyond its territorial jurisdiction

The Court considered the finding that neither the petitioner Institute had permission by the UGC to run the institute as a distance education programme study centre nor it had  obtained permission from the State Government and thus observed that the petitioner was concerned only with minting money and was least concerned with the prospects and future of the students. It also observed that “Education institution of the petitioner is no less than a commercial shop, where the aspiring needs of the students stand defeated due to the malpractices and frivolous activities of the petitioner. This is a classical example where the petitioner institute has presented an imaginary and illusory picture for making a successful career to the innocent students admitted in their institute, that too, by charging exorbitant fees and thereafter leaving them in the lurch to fend for themselves little knowing that even the courses undertaken by them may probably not even be recognized in the country. This practice is not only to be deprecated, but is also to be handled and dealt with a heavy hand.”

The Court considering various, guidelines and notification relating to territorial restrictions of a State Private University came to the conclusion that the petitioner could not act as a franchisee of the Sikkim Manipal University and dismissed the Petition.

However before it parted with the Judgement, it made certain important observations, regarding practice of educational institutions to issue misleading advertisements, charge exorbitant fees in different names, commercialization of education etc.:

The private institutions cannot be permitted to operate like money minting institutions.

  1. Imparting education can never be equated with profit oriented business as it is neither commerce nor business and if it is so, then the regulatory controls by those at the helm of affairs have not only to be continued, but are also required to be strengthened.
  2. Over a period of time, education has become a commodity in India. All the genres of society are so overly obsessed with education that it has devalued the real essence of education. Education is no more a noble cause but it has become a business, therefore, the paradigm shift, especially in the higher education from service to business is a matter of concern. The commercialization of education has a dreadful effect that is so subtle that it often goes unnoticed. 
  1. Mushroom growth of ill-equipped, understaffed and unrecognized educational institutions was noticed by the Hon’ble Supreme Court and it was observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements.
  1. Educational Institutions are indulging in gross misleading advertisements. which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience. These institutes trap into their web the innocent, vulnerable and unsuspecting students. Their lucrative and mesmerizing advertisements hypnotize the students only to fall into an unknown world of uncertainties. Some institutes promise hundred percent placement, some claim excellent staff, some claim free wi-fi campus, some promise free transportation etc. But what should really matter is ‘education’. This problem is further compounded by the proliferation of coaching institutes which have only made ‘education’ more dirty and murkier. 
  1. It is shocking that the private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time these practices are stopped forthwith and there is a crack down on all these institutions. Every education institution is accountable and no one, therefore, is above the law. It is not to suggest that the private education institutions are not entitled to their due share of autonomy as well as profit, but then it is out of this profit that the private education institutions, including schools are required to create their own assets and other infrastructure. They cannot under the garb of building fund etc. illegally generate funds for their “business expansion” and create “business empires”. 

The Court in light of all these observations felt that there is an urgent need for Government intervention by conducting a fresh investigation of all these institutions and directed the Chief Secretary to Government of Himachal Pradesh is directed to constitute a committee which shall carry out inspection of all the private education institutions at all levels i.e. schools, colleges, coaching centres, extension centres, (called by whatever name), universities etc. throughout the State of Himachal Pradesh regarding requisite infrastructure, parents teacher associations, qualified staff and submit report regarding compliance of the H.P. Private Educational Institutions (Regulation) Act, 1997 within three months.

The Court directed the State Government to ensure that no private education institution is allowed to charge fee towards building fund, infrastructure fund, development fund etc.

In addition to this, the Principal Secretary (Education) is directed to issue mandatory orders to all educational institutions, whether private or government owned, to display the following detailed information relating to faculty, infrastructure, fees breakup, details of internship and placement, on the notice board which shall be placed at the entrance of the campus and on their websites.

EduLegaL View:

Commercialization of education is certainly a serious issue. It is opposed to public policy and Indian tradition. Education has never been commerce in this country. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture.

To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.

Appropriate machinery can be devised by the state or university to ensure that exorbitant fee is not charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.

But nonetheless, after these borderlines have been drawn in plethora of judgements, the issue remaining a burning issue !

Ravi Bhardwaj | mail@edulegal.in

HC directs all Universities to evolve mechanism to decide eligibility at the beginning of academic year

” ……  A provisional admission does not create any vested right in the students. A provisional admission is a concession, which is granted to a student and the same cannot be elevated to a position of a creating a vested legal right. … ” 

“……… We therefore direct the State Government and the respective Universities in the State of Maharashtra to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible….”

The Bombay High Court, while being pained to see students-institutions wasting time in litigation in Court, has directed all the Universities in the State to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible.

The Petitioner in question could clear her backlog of the first year (IInd Semester- Applied Mathematics) subject, only in November, 2015 and before passing the same was granted admission to the Third year (Vth and VIth semester) which was wholly impermissible. The College and the University, for these reasons refused to allow the petitioner to appear for the viva- voce examination of the VIth semester which is to be held on 18th April,2016 and her form was not accepted.

The Petitioner then approached the Court seeking direction to allow the Petitioner to appear for the Viva Voce examinations and the written examinations for the sixth semester and continuation of studies in the seventh and thereafter in the eight semester in the engineering course in the Information Technology faculty.

The Court declined to entertain the petition relying on a rule that a candidate to be eligible to obtain an admission for the Third Year (V & VI semester) should have passed Semester I and II examination and when the Petitioner approached for admission to third year (V and VI semester) in the Academic Year 2014- 15 and was given provisional admission had not cleared the IInd semester examination namely the subject ‘Applied Mathematics’ in which she had failed and hence the Petitioner was not eligible for admission to Third Year.

The Court also ruled that a provisional admission does not create any vested right in the students. The Court also observed that a provisional admission is a concession, which is granted to a student and the same cannot be elevated to a position of a creating a vested legal right. The Petitioner in the present case was given provisional admission and hence she could have claimed any vested right.

Before concluding the Judgement, the Court made following observations:

“ We would be failing in our duty if we do not sound a note of caution in such cases which would be in the interest of the institutions and the students. We are at pains to see number of such cases coming to the court at the fag end when the examination is about to commence. This is routinely happening. Many times it is seen that the institution is at fault for not scrupulously enforcing norms of the University in respect of matters which the University would want the institution to do. The students also many times being aware of the rules try to exploit the situation and try to create equities, and then approach the court at the fag end. In all these situations the students may ultimately suffer huge loss in terms of their academic career. Such situations which are not conducive to anyone are required to avoided. All mischief’s if any at which ever level are required to arrested and remedied at the threshold. This would result in maintaining of academic standards. It is least expected that the students and the institutions waste their time in litigation in Courts. We therefore direct the State Government and the respective Universities in the State of Maharashtra to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible. If the institutions and colleges are guilty of making such admissions/ when are against the rules stern action should be taken against such colleges which would be deterrent to these colleges to deviate from the binding academic rules.”

Thus the Court has directed all the Universities in the State of Maharashtra including Deemed Universities to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible. The Court has also warned the Institutions and has cautioned that if the institutions and colleges are guilty of making such admissions/ when are against the rules stern action should be taken against such colleges which would be deterrent to these colleges to deviate from the binding academic rules.

EduLegaL View

 There is no doubt that in spirit, this Judgement is very good and will help in maintaining academic and administrative discipline. However, it is also important to note that considering the diversity of this country and different timings and processes all over the Country, it is almost impossible to determine eligibility at the time of admission.

There are many situations, when essential documents required for eligibility like Migration Certificate, verification of caste certificate, equivalence of a foreign degree from AIU consumes time. Additionally, the Institutions are also working a huge volume. In some case, even results of compartment / improvements are also declared and hence with utmost respect to the Judgement, such blanket process and deadline cannot be laid down.

Yes, I agree that this should certainly happen before the commencement of the second year, so that a student does not waste his time, as has also been observed by the Court.

However, this Judgement certainly gives me a thought and if it has to become a reality, we should have UNIFORM ACADEMIC CODE in the Country, when all the examinations start on same and results are declared on the same date throughout the country.

UNIFORM ACADEMIC CODE ! Another debate in making !

Planning Panel [Niti Aayog] recommends structure for setting up Foreign University in India

It all started with a proposed full-fledged legislation, then a via-media route was found and Academic Collaboration Regulations was introduced in 2013, which also did not work out to be effective, now it is planned to be part of National Education Policy.

Ministry of Human Resource Development had sought opinion from NITI AAYOG on the issue of permitting Foreign Universities to set up campus in India. A similar question was raised in Parliament.

As opined by NITI Aayog and as submitted by HRM in response to a question in Lok Sabha, NITI Aayog has opined that the road map for the same would involve a four-fold effort viz., (i) raising educational standards and international benchmarking (ii) attracting investment in the higher education sector (iii) leveraging India’s soft power and (iv) strengthening regulation.

MHRD

 

 

It was also informed by HRM that University Grants Commission had proposed fresh regulations for promotion and maintenance of standards of academic collaboration between Indian and Foreign Educational Institutions with a view to streamlining its regulations in the matter.

In so far as the legal structure is concerned, this can possibly be done by:

a] Passing of a new legislation to regulate such Universities, the scope of UGC Act, 1956 presently can regulate Universities set up Central / State Legislature

 b] Possibly amending the UGC [Institutions Deemed to be Universities] Regulations, 2010 and allowing such Universities to start operation as Deemed Universities. This would also require amendment in UGC Act, 1956.

 c] Amending modifying the existing UGC (Promotion and Maintenance of Standards of Academic Collaborations between Indian and Foreign Educational Institutes) Regulations, 2012, relaxing the criteria for twinning arrangements between Indian and foreign institutions to permit joint academic programs.

It was also informed that States were also requested to give their views on this issue under the theme of “Internationalisation of Education” and all suggestions received from States and during other consultation processes have been sent to the Committee for Evolution of New Education Policy.

EduLegaL View

Foreign Direct Investment [FDI] is not a new term for any economy. In fact under the policy framework, the Indian government has allowed 100 percent Foreign Direct Investment (FDI) in the education sector through automatic route. However, due to lapsing legislations, stringent regulations, the Policy has remained only a Policy and has not been exploited.

Higher education has suffered in India due to variable reasons, including quality, regulations, infrastructure etc. Resultantly, a large number of Indian students go abroad for their higher education. The entry of foreign universities will encourage competition, quality and will also provide locally the same international platform for Indian students, which are available outside.

“Brain Gain” and not “Brain Drain” is underlying manifestation of the proposed new Policy.

Ravi Bhardwaj | mail@edulegal.in

Advertising Council finds ads of major Coaching Institutes misleading

In a major crackdown on Advertisements released by the Coaching Institutes in print media as well as on their websites, engaged in field of Coaching Students for CAT, MBA, Law Entrance, Banking Examinations, the Advertisement Standard Council of India, has in its decision of January 2016 has found several of their ads to be misleading, unsubstantiated and ambiguous.

These Institutes as per the decision of the Advertising Council have claims of Ranking in the Entrance Examinations, Number of successful students, Coaching and Learning Material Preparations and Contents, Test Series, Coaching Pedagogy to influence the aspirants to join their Institutes.

In January 2016, ASCI’s Consumer Complaints Council (CCC) upheld complaints against major Coaching Institutions which operate in MBA / Engineering / Law Domain relating to misleading advertisements and unsubstantiated claims in their Advertisements. The CCC found that claims in the following advertisements were not substantiated and, thus, violated ASCI Guidelines for Advertising of Educational Institutions.

1. CL Educate Ltd. (Career Launcher):

A] The claims in the advertisement, “CL, No.1 CAT coaching institute with 9629 IIM Calls in CAT’14. Best MBA prep for CAT, IIFT, XAT, NMAT, SNAP Exams“, “Best MBA prep for CAT, IIFT, XAT, NMAT, SNAP Exams” were not substantiated. The claims were misleading by exaggeration.

B] The claim in the advertisement, “Undisputed market leader in the field of Mgmt Entrance Training”, was false.

C] CAT’16/17: The claim in the advertisement, “9629 IIM calls in CAT 2014”, was not adequately substantiated and was misleading by ambiguity and omission of mention of number of students.

2. Think & Learn Pvt. Ltd. (Byju’s Cat Coaching Institute):

A] The claims in the advertisement, “Best CAT Coaching Institute in Delhi”, and “CAT Coaching by India’s Best Trainers, Byju and Santosh”, were not substantiated.

B] The claim in the advertisement, “Join the best coaching for CAT and boost your CAT preparation”, was not substantiated.

3. TathaGat (MBA Entrance / CAT coaching): The claim in the advertisement, “TathaGat is Delhi’s most successful MBA Entrance / CAT coaching institute for last 5 years now”, was not substantiated.

4. Bulls Eye: The claims in the advertisement, “Highest selection/conversion ratio in the industry”, “Best free prep website in India”, “Bulls eye test series is the best” and “Best free MBA preparation website in India”, were not substantiated.

5] National Banking Academy: The claim in the advertisement, “No.1 institute for BANK & SSC”, was not substantiated.

6] Sriram Law Academy: The claim in the advertisement, “Sriram student secure All India 1st Rank for 12th year in a row!”, was not substantiated adequately and is misleading by ambiguity, as the advertiser does not mention the name of the test/exam in the advertisement, and has not submitted supporting data to prove that the photographs of students shown were actually 1st rankers and were from Sriram Law Academy.

7] Rice Education: The claim in the advertisement, “The Best Training for Govt. Jobs Examination”, is an absolute claim and was not substantiated with supporting comparative data versus other institutes.

8] Adamas Career: The claim in the advertisement, “The Best Choice for Medical and Engineering Entrance Examination”, was not substantiated.

9] Shanti Business School: The claims in the advertisement, “100% Placements (misprinted as 1 0%)” and “Average Package – INR 4.65 LPA” were not substantiated and when read in conjunction, were grossly misleading by implication of availability of higher salary packages.

10] Mewar Classes (Crash Course): The claim in the advertisement, “No. 1 coaching in Bhilwara”, was not substantiated.

The Advertising Standards Council of India (ASCI) was established in 1985. One of the important functions of ASCI to ensure the protection of the interests of consumers in various categories. ASCI has therefore laid down guidelines with a view to achieve the acceptance of fair advertising practices in the best interests of the ultimate consumer.

The Consumer Complaints Council (CCC) of ASCI deals with complaints received from Consumers and Industry, against Advertisements which are considered as False, Misleading, Indecent, Illegal, leading to Unsafe practices, or Unfair to competition, and consequently in contravention of the ASCI Code for Self-Regulation in Advertising.

ASCI is also the “Executive Arm” of the Department of Consumer Affairs handling all complaints pertaining to misleading advertisements.

EduLegaL View:

An old marketing strategy saying goes “ Jo Dikhta wahi bikta hai”, it would not be out of place to improvise it to say “Jo Dikhaya Jata hai, wahi bikta hai”.

Coaching Classes and Institutions have overgrown in India due to huge peer pressure and parental aspirations. It is one of the biggest sector, but still unregulated in majority part of the Country. It is high time that this sector is regulated.

Advertisements surprisingly have become one of most important medium to attract students recently amongst educational institutions. Advertisements play a big role in deciding an Institution and it is required that it should be a responsible step devoid of inducements and falsehoods.

But my issue is, what next, what is the action that will be taken against these coaching institutions, who have indulged in misleading publications and advertisements and what about the students who found themselves on the wrong side relying upon the advertisements.

There is no effective legislation in place, which deals with these situations. MHRD look into the matter and bring effective legislation to ban such ads and take effective actions against the Institutions.

Ravi Bhardwaj | mail@edulegal.in

SC issues Notice to Deemed Universities on Transfer Petition by MHRD relating to Deemed University Regulations, 2010

Supreme Court has issued Notice to Deemed Universities on a Transfer Petition filed by MHRD relating to transfer of Appeal filed by MHRD challenging the judgement passed by Karnataka High Court dated 22.05.2014, which quashed the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 as ultravires to UGC Act, 1956 and Constitution of India.

University Grants Commission in the year 2010, has notified University Grants Commission (Institutions Deemed to be Universities) Regulation 2010. The Deemed Universities felt that the Regulations interfered with the autonomy of the Institutions. The Regulations also in their view placed unreasonable restriction on rules relating to governance, admission, fee structure etc. Therefore, several Deemed Universities had challenged the provisions of the University Grants Commission (Institutions Deemed to be Universities) Regulations, 2010 in different High Courts in India.

Tamilnadu

The Deemed Universities based in Tamilnadu made the first challenge. Though initially STATUS-QUO was granted in the matter, but later by a detailed Judgement, the challenge by Deemed Universities based in Tamilnadu was over ruled and the legality and validity of University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 was upheld. The Deemed Universities in Tamilnadu later challenged the Judgement pronounced by Single Judge before Division Bench. The matter is pending for determination before the Division Bench, however the Court has ordered that STATUS QUO will be maintained.

Karnataka

Following the suit, certain Deemed Universities in Karnataka also challenged the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 in Karnataka High Court. In some of the Petition there, stay was granted on the Regulations and some the Court was pleased to order STATUS QUO in favour of the Petitioner as against UGC and MHRD. Later vide detailed Judgement dated 22.05.2014 the Hon’ble Court declared University Grants Commission (Institutions Deemed to be Universities) Regulation 2010, was declared to be invalid and unconstitutional. UGC and MHRD have both filed appeals independently against the Judgement before Division Bench.

Punjab

One of the challenge was also filed before Punjab & Haryana High Court. The matter is pending consideration before the Hon’ble Court. Interim Order staying the Regulations have been passed.

Maharashtra [Aurangabad Bench]

Some of the Deemed Universities based in Maharashtra have also challenged the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010. Though as understood, no Interim Order has been passed in the matter.

Matter Sub-Judice- but UGC keeps amending these Regulations

While Interim Stay is prevailing in one High Court and another High Court has quashed the Regulations, UGC continued to amend the Regulations from time to time, which raised a critical issue as to, did UGC had the legal competency to amend the Regulations, while Courts in India hearing cases relating to challenge and Interim Order restraining UGC from enforcing the Regulations were prevailing and the Regulations were quashed.

Transfer Petition in Supreme Court

MHRD has now filed Transfer Petitions before the Hon’ble Supreme Court of India in Transfer Petition (Civil) Nos. 1555-1561 of 2014 seeking transfer of the cases relating to challenge to University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 before Hon’ble Supreme Court of India. The Transfer Petition were called before the Hon’ble Supreme Court on 11.11.2014. The Supreme Court adjourned these matter on request of the Government to 18.11.2014. The matter was not listed thereafter for so many months.

Eventually, vide order dated 26.02.2014 and 29.03.2014 has issued notice on the Transfer Petition filed by MHRD. The notice is returnable in four weeks. The matter may now be listed on 29.04.2016.

EduLegaL View

University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 applies to all the Deemed Universities. Different High Courts in India took different view of the Regulations resulting in conflict as regards its validity and applicability, as one High Court said it is valid and another said it is invalid.

It is appropriate that considering the universal applicability of the Regulations, the Highest Court of the country rules on its validity and legality, so that issue is settled once and for all.

But again MHRD has take half-effort. It has filed transfer petition in respect of Petitions filed in Karnataka only and not in respect of petitions filed in other High Courts. This will again leave vacuum in the Regulatory Regime.

But till then, the arguments will continue !!!!

Ravi Bhardwaj | mail@edulegal.in