w w w . L a w y e r S e r v i c e s . i n



Business Institute of Management Studies v/s State of Himachal Pradesh & Others


Company & Directors' Information:- I F P BUSINESS MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140DL2008PTC180458

Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

    CWP Nos. 8789 & 8781 of 2014

    Decided On, 27 April 2016

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE TARLOK SINGH CHAUHAN

    For the Petitioner: Rajesh Prakash, Advocate. For the Respondents: R1, Meenakashi Sharma, Additional Advocate General with Parul Negi, Pankaj Negi, Deputy Advocate Generals, R2, Dilip Sharma, Senior Advocate with Manish Sharma, R3 to R6, Ajit Sharma, Prashant Sharma, Advocates.



Judgment Text

'Mata shatru pita bairi, yena balo na pathita. Na shobhate sabha madhye hans madhye bako yatha.'

1. This is a Sanskrit saying espousing the importance of education. It means that 'Parents who do not educate their children are their children’s enemies. Such children look as awkward in any gathering, as a Stork amongst dainty Swans.'

2. Education is an investment made by the nation in its children for harvesting future crop of responsible adults productive of a well-functioning society (Refer Rohit Singhal Vs. Jawahar Navodya Vidyalaya, (2003) 1 SCC 687).

3. Since common questions of law and fact arise for consideration, therefore, both these writ petitions were taken up together for hearing and are being disposed of by way of a common judgment.

4. These petitions are directed against the order passed in case Nos. 2 and 3 of 2012, whereby respondent No. 2 directed the petitioners to jointly and severally refund the fees taken from private respondents.

The facts in brief may be noticed.

5. The petitioner institute is a registered education society, under the Societies Registration Act, 2006 and would claim that it was recognized by the Sikkim Manipal University and thus entitled to run various courses on its behalf.

6. It appears that the private respondents filed petition under Section 11 of the H.P. Private Educational Institutions (Regulatory Commission), Act, 2010 (for short the 'Act') and Rule 6 of the H.P. Private Educational Institutions (Regulatory Commission) Rules, 2011 (for short the 'Rules'), 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.

7. These petitions were contested by the petitioner and vide impugned order, the petitioner was directed to refund the fee. The impugned orders have been challenged on the ground that respondent No. 2 had no jurisdiction to entertain the petition, as the dispute relating to Sikkim Manipal University was beyond its territorial jurisdiction and further that the private respondents did not fall within the definition of students, therefore, also their claim before the respondent No. 2 was not maintainable.

8. Only respondent No. 2 has contested the petition by filing reply wherein it has been averred that University established or incorporated by or under a State Act is to operate only within the territorial jurisdiction allotted to it under its Act and in no case can it operate beyond the territory of the State of its location. It has further been averred that the private Universities and deemed Universities cannot affiliate any college or institution for conducting courses leading to award of its diploma, degrees or other qualifications and that no University whether Central, State or deemed can offer its programmes through franchising arrangement with private coaching institutions even for the purpose of conducting courses through distance education. It is then averred that the prospectus issued by the petitioner would show that the institute has been recognized by Sikkim Manipal University and whereas the Sikkim Manipal University, as per the official website of the University Grants Commission, is a State private University, therefore, the petitioner institute could not have been affiliated to this University and was thus illegally claiming to have been recognized by Sikkim Manipal University. Once the petitioner was not authorized to act as franchisee or affiliated Institute of Sikkim Manipal University, therefore, it could not have collected any fee from the students.

I have heard the learned counsel for the parties and have gone through the material placed on record.

9. This Court can take judicial notice of the fact that number of fraudulent boards and institutions are coming up in the country with a primary aim of duping the public in the field of education, by presenting imaginary and illusionary picture for making a successful career to the innocent and vulnerable students.

10. The Hon’ble Supreme Court has repeatedly deprecated the practice of admitting students to these unrecognized, unapproved and unaffiliated institutions. Undeniably, slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of education.

11. In State of Tamilnadu and others Vs. K. Shyam Sunder and others, (2011) 8 SCC 737, the Hon’ble Supreme Court explained the importance of education in the following terms:-

'18. In the post-Constitutional era, an attempt has been made to create an egalitarian society removing disparity amongst individuals, and in order to achieve that purpose, education is one of the most important and effective means. After independence, there has been an earnest effort to bring education out of commercialism/mercantilism. In the year 1951, the Secondary School Commission was constituted as per the recommendation of Central Advisory Board of Education and an idea was mooted by the Government to prepare textbooks and a common syllabus in education for all students. In 1964-1966, the report on National Education Policy was submitted by the Kothari Commission providing for common schools suggesting that public funded schools be opened for all children irrespective of caste, creed, community, religion, economic conditions or social status. Quality of education imparted to a child should not depend on wealth or class. Tuition fee should not be charged from any child, as it would meet the expectations of parents with average income and they would be able to send their children to such schools. The recommendations by the Kothari Commission were accepted and reiterated by the Yashpal Committee in the year 1991. It was in this backdrop that in Tamil Nadu, there has been a demand from the public at large to bring about a common education system for all children.'

12. In State of Orissa Vs. Mamata Mohanty (2011) 3 SCC 436, the Hon’ble Supreme Court emphasized the importance of education by observing that education connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling.

13. In Osmania University Teachers’ Association Vs. State of Andhra Pradesh, (1987) 4 SCC 671, it was held that democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs.

14. A learned Division Bench of this Court in CWP No. 7688 of 2013 titled H-Private Universities Management Association (H-PUMA) vs. State of H.P. and others decided on 23.7.2014, was dealing with the right of private universities to make admission to various technical courses in the institution dehors the rules and it was held that right to establish an educational institution was not a business or trade, given solely for profit making since the establishment of educational institutions bears a clear charitable purpose. The establishment of these institutions has a direct relation with the public interest in creating such institutions because this relationship between the public interest and private freedom determines the nature of public controls which can be permitted to be permissible. This Court also upheld the right of the State to act as a regulator to maintain academic standard. The following observations from the judgment deserve to be taken note of:

'20. In view of the various pronouncements of the Hon’ble Supreme Court, it can safely be concluded that in a right to establish an institution, inherent is the right to administer the same which is protected as part of the freedom of occupation under Article 19 (1) (g). Equally, at the same time, it has to be remembered that this right is not a business or a trade, given solely for the profit making since the establishment of educational institutions bears a clear charitable purpose. The establishment of these institutions has a direct relation with the public interest in creating such institutions because this relationship between the public interest and private freedom determines the nature of public controls which can be permitted to be 'permissible'. Even the petitioners concede that they have established the institutions to ensure good quality education and would not permit the standard of excellence to fall below the standard as may be prescribed by the State Government. The petitioners also conceded that the State makes it mandatory for them to maintain the standard of excellence in professional institutions. Thus, ensuring that admissions policies are based on merit, it is crucial for the State to act as a regulator. No doubt, this may have some effect on the autonomy of the private unaided institution but that would not mean that their freedom under Article 19 (1) (g) has in any manner been violated. The freedom contemplated under Article 19 (1) (g) does not imply or even suggest that the State cannot regulate educational institutions in the larger public interest nor it be suggested that under Article 19 (1) (g), only insignificant and trivial matters can be regulated by the State. Therefore, what clearly emerges is that the autonomy granted to private unaided institutions cannot restrict the State’s authority and duty to regulate academic standards. On the other hand, it must be taken to be equally settled that the State’s authority cannot obliterate or unduly compromise these institutions’ autonomy. In fact it is in matters of ensuring academic standards that the balance necessarily tilts in favour of the State taking into consideration the public interest and the responsibility of the State to ensure the maintenance of higher standards of education.

23. The State has power to regulate academic excellence particularly in matters of admissions to the institutions and, therefore, is competent to prescribe merit based admission processes for creating uniform admission process through CET. Any prayer for seeking dilution or even questioning the authority of the State to act an regulator is totally ill-founded in view of the various judicial pronouncements, particularly in Visveswaraiah Technological University and another vs. Krishnendu Halder and others (2011) 4 SCC 606 and reiterated in Mahatma Gandhi University and another vs. Jikku Paul and others (2011) 15 SCC 242.'

15. Adverting to the facts, two fold submissions have been made by learned counsel for the petitioner. Firstly that respondent No. 2 had no territorial jurisdiction to adjudicate upon the issue and secondly, that the private respondents were no longer the students and therefore, also their claim before respondent No. 2 was not maintainable.

16. Section 2(c) of the Act of 2010 defines private educational institutions in the following terms:

'2(c) 'Private Educational Institutions' means all the private educational institutions in the State viz. degree colleges, professional colleges of Education, Institutes of Technical Education, Management, Law, Engineering, Medicine, Pharmacy, Paramedical Institutions and Universities, deemed Universities, Centres of Excellence, or any other educational institutions of higher learning, except schools affiliated to any recognized Board of School Education.'

Likewise, student has been defined in Section 2(f) in the following terms:-

'2(f) 'student' means a person enrolled in the Private Educational Institution for pursuing a course of study for the award of a degree, diploma, certificate or other academic distinction.'

17. Powers and functions of the Commission have been set out in Section 9, as follows:-

'9. Powers and functions of the Commission.--- (1) It shall be the duty of the Commission to ensure that standards of admission, teaching, examination, research, extension programme, qualified teachers and infrastructure, are being maintained by the Private Educational Institutions in accordance with the guidelines issued by the Regulatory Bodies of the Central Government or the State Government or by the Central Government or the State Government from time to time. IN case of failure of the Educational Institution to meet the standards laid down, the Commission shall have the power to penalize the Educational Institutions under section 11 of the Act and in case of successive failure of an Institution to meet the standards, the Commission may recommended to the State Government/Regulatory Body for the winding up of the Institution.

(2) The Commission shall ensure that the admissions in the Private Educational Institutions are based on merit achieved in National Common Entrance Test or the State Common Entrance test or any other test as notified by the State Government and where there is no National Level Common Entrance Test, or State Level Common Entrance Test or any other test, the merit shall be determined strictly on the basis of the marks obtained in the qualifying examination.

(3) The Commission shall develop an appropriate mechanism for receipt and redressal of grievances of students and parents, and direct the private institution to set-up a proper Grievance Redressal mechanism for redressal of complaints reported to the Commission. Such complaints shall be addressed within the time fixed by the Commission with details of the steps taken by the institution to redress such complaint.

(4) The Commission may conduct inspections of Private Educational Institutions as and when required and may form expert committees, for inspections of Private Educational Institutions.

(5) The Commission shall have the power to monitor and regulate fees in Private Educational Institutions.'

The Commission has been vested with the same powers as that of the Civil Courts under the Code of Civil Procedure in respect of the matters set out under Section 10 of the Act and further the Commission has been conferred the power to levy penalties on various claims.

18. It is not in dispute that the petitioner is a private education institution within the meaning of Section 2(c) of the Act and operating within the territorial jurisdiction of Himachal Pradesh and was thus amenable to the jurisdiction of respondent No. 2.

19. Now in so far as the second contention of the petitioner is concerned, even if it is assumed that the private respondents are no longer students that would not in any manner affect their right to approach respondent No. 2 for the redressal of the grievances. At the same time, this fact alone would not whittle down the jurisdiction or authority of respondent No. 2 to adjudicate upon the issue.

20. That apart, it would be noticed that the private respondents in para 1 of the complaint had categorically stated that they being students of the petitioner institute were competent to file and maintain the petition before respondent No. 2. It shall be apt to reproduce para 1 of the petition, which reads thus:-

'1. That the petitioners are permanent residents of the addresses mentioned in the memo of parties and being students of the respondents Institute at Shimla and being residents of Himachal Pradesh are competent to file and maintain the present petition before this Hon’ble Authority.'

21. Notably, the petitioner has not disputed this position and has rather admitted the same to be a matter of record, as would be evident from para 1 of the reply, which reads thus:

'1.That the para 1 No. of the petition is a matter of record hence denied.'

22. At this stage, it would also be noticed that one of the points for consideration before respondent No. 2 was as to whether the petitioner had in fact been granted permission by the UGC to run the institute as a distance education programme study centre and whether the petitioner had even obtained permission from the State Government. These questions were answered in the negative, as the petitioner failed to produce any permission granted either by the UGC or by the State Government.

23. This clearly establishes that the petitioner was concerned only with minting money and was least concerned with the prospects and future of the students. This is further evident from the fact that it was charging a fee which had not even been approved by the Sikkim Manipal University itself.

24. 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.

25. In Prof. Yashpal and another Vs. State of Chhattisgarh and others, (2005) 5 SCC 420, the Hon’ble Supreme Court has expressed its deep anxious and concern about the quality of education. It had also expressed its concern about mushrooming growth of fake education institutions. The relevant portion reads as under:-

'63. There is hardly any merit in the submission raised. The impugned Act which enables only a proposal of a sponsoring body to be notified as a University is not likely to attract private capital and a University so notified cannot provide education of any kind much less of good quality to a large body of students. What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide high level of teaching and other facilities like well equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not Universities without any teaching facility but having the authority to confer degrees. If good institutions are established for providing higher education, they can be conferred the status of a deemed University by the Central Government in accordance with Section 3 of UGC Act or they can be affiliated to the already existing Universities. The impugned Act has neither achieved nor is capable of achieving the object sought to be projected by the learned counsel as it enables a proposal alone being notified as a University.'

26. Even otherwise, the issue raised in the present writ petitions is no longer res integra. The Hon’ble Supreme Court in Prof. Yashpal’s case supra has clearly held that the State Legislature can only make laws for its own State and not for whole of India. The relevant portion of the judgment is reproduced herein below:-

'60. Dr. Dhawan has also drawn the attention of the Court to certain other provisions of the Act which have effect outside the State of Chhattisgarh and thereby give the State enactment an extra territorial operation. Section 2(f) of the amended Act defines 'off-campus centre' which means a centre of the University established by it outside the main campus (within or outside the State) operated and maintained as its constituent unit having the university's complement of facilities, faculty and staff. Section 2(g) defines "off-shore campus" and it means a campus of the university established by it outside the country, operated and maintained as its constituent unit, having the university's complement of facilities, faculty and staff. Section 3(7) says that the object of the University shall be to establish main campus in Chhattisgarh and to have the study centres at different places in India and other countries. In view of Article 245 (1) of the Constitution, Parliament alone is competent to make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. The impugned Act which specifically makes a provision enabling a University to have an off-campus centre outside the State is clearly beyond the legislative competence of the Chhattisgarh legislature.'

27. That apart, the University Grants Commission (UGC) has framed the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003 and the same are applicable to private universities such as Sikkim Manipal University.

28. Regulation 3.3 of these regulations puts restriction on establishment of an University outside the State by any State. The same reads thus:-

'3.3. A private university established under a State Act shall operate ordinarily within the boundary of the State concerned. However, after the development of main campus, in exceptional circumstances, the university may be permitted to open off campus centres, off-shores campuses and study centres after five years of its coming into existence, subject to the following conditions…..'

29. It has come in the order impugned herein that the UGC has not granted any permission to Sikkim Manipal University to open its study centre outside the State of Sikkim and therefore, in such eventuality the Sikkim Manipal University could not have extend its arms/activities beyond the State of Sikkim by setting up study centre outside the State. Therefore, what follows is that the Sikkim Manipal University constituted under the State Law passed by the legislature of the State of Sikkim, prima facie, could not have extra territorial authority, i.e. it cannot run, manage or supervise study centres outside the State of Sikkim.

30. Following the decision in Prof. Yashpal case (supra), the Hon’ble Supreme Court in Rai University Vs. State of Chattisgarh and others (2005) 7 SCC 330 had clarified that 'institutions of the erstwhile private Universities, if otherwise eligible, may apply and seek affiliation with any other University which has jurisdiction over the area where the institution is functioning and is empowered under the relevant Rules and Regulations and other provisions of law applicable to the said University to grant affiliation'.

31. The issue thereafter came up before the Hon’ble Supreme Court in Annamalai University Represented by Registrar versus Secretary to Government, Information and Tourism Department and others (2009) 4 SCC 590 wherein it was held that the provisions of the UGC Act are binding on all universities whether conventional or open. They apply equally to Open Universities as also to formal conventional universities. It was further held that in the matters of higher education, it is necessary to maintain minimum standards of instructions and such minimum standards of instructions are required to be defined by the UGC. It is apt to quote relevant observations which read thus:-

'40. The 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.

41. 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.

42. 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 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 subsection (1) of Section 12A and clauses (a) and (c) of sub- section (2) thereof.

43. 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.

44. 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 comprehend 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.

45. The amplitude of the provisions of the UGC Act vis--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.

50. The 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.

51. 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.

55. 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 nonformal/distance education 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.

56. 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.

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

58. 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.'

32. At this stage, I may also refer to the Distance Education Council (DEC) guidelines for regulating the Establishment and Operation of Open and Distance Learning (ODL) Institutions in India issued by DEC. The Preamble to these guidelines clearly sets out the mischief that is sought to be remedied by these guidelines. The relevant portion whereof reads as under:-

'Of late, it has been seen that there is indiscriminate proliferation of Open and Distance Learning (ODL) Institutions in India. Even single-mode conventional universities are becoming dual mode to offer programmes in the distance mode. This has happened due to the fact that the formal system of face-to-face instruction has failed to cope up with the educational requirements of the ever-increasing number of aspiring students after plus two stage. At present more than 20% students of higher education in the Country are enrolled in the ODL system. What is disturbing to note is that distance mode has become purely commercial venture with little or no attention being paid to the quality of education offered to the learners. Many Universities awarding sub-standard certificate/diploma/degree programmes are not adhering to even the guidelines issued by the concerned regulatory bodies. In order to safeguard the interest of the students in India and to ensure the quality of education, the DEC has framed Guidelines, 2006 for regulating the establishment and operation of Open and Distance Learning (ODL), Institutions in India.'

33. It would be evident from the above that the parent institutions shall not establish their study centres/regional centres outside their jurisdiction as specified in the parent institutions Act/MOA. Further in case of 'deemed university' offering distance education programmes, the same will be confined to the state in which the main campus of the parent institution is located, except for programmes that are culturally and linguistically relevant even outside their State and for that explicit approval of DEC should be obtained for offering such programmes (guideline 3.3).

34. Guideline 9.2 further states that the Study Centres shall be opened only in affiliated and constituent colleges, and in such other academic institutions which the parent institution may deem fit. The Study Centre should be located only within the jurisdiction of the parent institution after signing MOU. In case of 'deemed university', the study centres should be only in the State where its headquarter is located.

35. The blatant compromise with the standards of education by these franchisees/study centres etc. in fact compelled the DEC to issue a public notice dated 27th June, 2013 on courses/study centres/off-campuses and territorial jurisdiction of universities, which reads as follows:-

'Public Notice

On

Courses/Study Centres/Off Campuses & Territorial Jurisdiction of Universities

No.F.27-1/2012(CPP/II) 27th June, 2013

The Commission has come across many advertisements published in National Dailies offering opportunities for the award of university degrees through various franchise programmes conducted by certain private institutions. These private establishments claiming themselves as study centres or learning centres of different universities enroll students for various degree programmes and also claim to be responsible for teaching and conduct of examinations. The faculty and the infrastructure belong to these private agencies. The concerned university except providing syllabus and teaching materials has no mechanism to monitor and maintain the academic standards of teaching being imparted at these centres. This blatant compromise with the standards of education has led to widespread criticism. The Commission has taken a serious view of these misleading advertisements appearing in various newspapers:

It is, therefore, clarified for the information of all concerned, including students and parents that:-

a) a Central or State Government University can conduct courses through its own departments, its constituent colleges and/or through its affiliated Colleges;

b) a university established or incorporated by or under a State act shall operate only within the territorial jurisdiction allotted to it under its Act and in no case beyond the territory of the state of its location;

c) the private universities and deemed universities cannot affiliate any college or institution for conducting courses leading to award of its diplomas, degrees or other qualifications;

d) no University, whether central, state, private or deemed, can offer its programmes through franchising arrangement with private coaching institutions even for the purpose of conducting courses through distance mode.

e) all universities shall award only such degrees as are specified by the UGC and published in the official gazette.

f) the Universities shall conduct their first degree and Master’s degree programmes in accordance with the regulations notified by the Commission in this regard.

In this connection, the students and the general public are also hereby informed of the following regulating provisions pertaining to different types of universities;

A. UGC Regulations on Private Universities A private university established under a State Act shall be a unitary university. A private university may be permitted to open off campus centres, off shore campuses and study centres after five years of its coming into existence subject to the fulfillment of conditions as laid down under UGC (Establishment of & Maintenance of Standards in Private Universities) Regulations, 2003. As of now, the UGC has not granted permission to any Private University to establish off-campus/study centre.

B. UGC Regulations on Deemed Universities A Deemed University shall operate only within its Headquarters or from those off campuses/off shore campuses which are approved by the Government of India through notification published in the official gazette.

In case of distance education programmes, no institution deemed to be university, so declared by the Govt. of India after 26th May, 2010 (date of publication of UGC (Institutions Deemed to be Universities) Regulations, 2010) is allowed to conduct courses in the distance mode.

The institutions deemed to be universities declared before 26th May, 2010 are not allowed to conduct courses in distance mode from any of its off-campus centres/off-shore campuses approved after 26th May, 2010.

Approval for new courses and extension of approval of the courses already run by the Deemed to be Universities under distance mode would be granted by the UGC subject to the fulfillment of conditions as laid down by the UGC.

The UGC has not granted approval to any deemed to be university to establish study centre.

Any information/clarification with regard to recognition of private Universities/Deemed Universities and the course offered by them may be obtained from JS (CPP-I) UGC, Bahadurshah Zafar Marg, New Delhi.

C. Distance Education programmes of the Central Universities and State Govt. Universities.

The Central/State Govt. Universities can conduct courses through distance mode in accordance with the provisions of their respective Act and after the approval of the UGC.

The information relating to recognized universities, list of specified degrees and all the relevant regulations/instructions/guidelines of the UGC are available on UGC website:www.ugc.ac.in.

The students are advised not to take admission in the unapproved Study Centres, Off-Campus Centres, Franchisee Institutions, Colleges/Institutions claiming to be affiliated with Private Universities or Deemed Universities.

Sd/-

(Akhilesh Gupta)

Secretary'

36. Not only this when the universities/deemed universities began issuing misleading advertisements by stating that their programmes were recognized by the UGC, then the UGC itself had to intervene and issued a public notice cautioning the students, parents and public in general regarding these misleading advertisements by issuing a public notice dated 04.06.2015 which reads thus:-

'UNIVERSITY GRANTS COMMISSION

BAHADUR SHAH ZAFAR MARG

NEW DELHI-110 002

***

PUBLIC NOTICE- DISTANCE EDUCATION PROGRAMME

F.No.11-5/2015 (DEB-III) Dated 04.06.2015.

It has come to the notice of the UGC that some Universities/Deemed to be Universities/Institutions are offering programs through Open & Distance Learning (ODL) mode in gross violation of the policy of the erstwhile DEC/UGC. These Universities/Deemed to be Universities/Institutions are issuing misleading advertisements by stating that their programmes are recognized by the UGC.

As per the present policy, State Universities (both Public & Private) cannot set up their off-campus/study centre outside the State where they have been established. And, even within the State, Private Universities are required to take prior permission of the UGC to establish their study centre/off- campus. Similarly, Deemed to be Universities are required to take prior permission of the UGC to establish any off-campus centre/study centre outside their main campus. It is pertinent to mention that No University/Institution Deemed to be University/Institution is permitted to offer Diploma/Bachelor/Master level programmes under ODL mode in Engineering & Technology. The policy of the UGC with regard to territorial jurisdiction and offcampuses/study centres has been clearly articulated in its Public Notice dated 27.06.2013, which is posted on the UGC website for the knowledge of the public. It may also be noted that the UGC has so far not accorded recognition to any university/institution to offer ‘online’ programmes.

Students, parents and public in general, are hereby, informed that the list of the recognized institutions (alongwith the courses), which are permitted to offer programmes through ODL mode is posted on the UGC’s website and can be accessed from www.ugc.ac.in/deb. The qualifications acquired through ODL mode from a non-recognized institution of higher learning shall neither be recognized for the purpose of employment in government service nor for pursuing higher education.

Sd/-

Secretary, UGC'

37. At this stage, I may also take note of a very important development. The Sikkim Manipal University had approached the High Court of Sikkim by filing writ petition No.4 of 2013 challenging therein amongst other things the decision taken by Indira Gandhi National Open University in its 40th meeting dated 08.06.2012 wherein it was decided that State University could not have study centres outside the geographical limits of the State even if the State legislation permitted it to do so. Four questions were framed by the learned Court for consideration which read thus:

'(a) Does the UGC have supervening position upon the IGNOU, DEC and the Universities, both Private and Government funded, created under the State Acts?

(b) Can it be said that Regulations 2003 was never applied after it was framed and that UGC Regulation, 1985 continued to be in force?

(c) Would the letters issued to the Petitioner-University by the IGNOU and DEC in contravention to letter dated 29-12-2012, Annexure P29, of the Ministry of Human Resource Development, Respondent No.2, amount to abandonment of Regulations 2003?

(d) Can it, therefore, be said that it was permissible for the Universities of all categories to run DEP outside the territorial limits of the State?'

38. After detailed discussion, question No.(a) was answered in the affirmative. Thereafter questions No.(b) to (d) being inter-related were taken up together for consideration and thereafter even questions No.(b) to (d) were answered in favour of the respondents and all the prayers made in the writ petition, save and except prayer No.(a), were rejected by the Court vide its decision dated 26.06.2015. However, the University was granted liberty to approach the concerned UGC and IGNOU for recognition of its programme through ODL mode.

39. Now, insofar as prayer No.(a) is concerned, the same reads thus:-

'(a) issue an appropriate writ, order or direction directing Respondent No.1 to expeditiously dispose of the Petitioner’s application for continuation of recognition dated 10-07-2012;'

Thus, it would be clear that insofar as the substantive relief of the University is concerned, the same was disallowed.

40. For completion of record, it may be mentioned that UGC did assail the aforesaid judgment before the Hon’ble Supreme Court in SLP(C) No.26223/2015 which was, however, dismissed on the ground that since the questions of law raised by the University were decided in favour of the UGC and it was only in the peculiar facts of the case as it had been noted by the High Court that relief had been granted to the students, who had undergone the distant learning courses, the Court declined to interfere. This would be evident from the order passed by the Hon’ble Supreme Court on 21.09.2015 which is reproduced herein under:-

'Applications for exemption from filing certified copy of the impugned judgment and application for permission to place additional documents on record are allowed.

Insofar as the questions of law raised by the petitioner-University Grants Commission before the High Court were concerned, they have been decided in favour of the petitioner. However, in the peculiar facts of the case as noted by the High Court, relief is granted to the students who had undergone the distant learning courses. We are not inclined to interfere with those directions passed by the High Court on those facts.

The special leave petitions are, therefore, accordingly, dismissed.

Obviously, such an order would not be cited as a precedent in any other case.'

41. 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. It is evident from the decisions of the Hon’ble Supreme Court in Prof. Yashpal’s case, Rai University’s case and Annamalai’s case (supra) as also the guidelines framed by the DEC, the regulations framed by the UGC in 2003 which have also been taken note of in the judgment rendered in Prof. Yashpal’s case that a private university established under the State Act can operate ordinarily within the boundaries of the State and it is only after the development of main campus that in exceptional circumstances the university may be permitted to open off-campus centres, off-shores campuses and study centres after five years of its coming into existence that too subject to various conditions.

42. This position has further been clarified in the public notice issued by the DEC on 27.06.2013 (supra) wherein it has again been clarified that a university established or incorporated by or under a State Act shall operate only within the territorial jurisdiction allotted to it under its Act and in no case can it operate beyond the territory of the State or its location. It has also been clarified that the private universities and deemed universities cannot affiliate any college or institution for conducting courses leading to award of its diploma, degrees or other qualifications and lastly it has been categorically made clear that no university, whether Central, State, Private or Deemed, can offer its programmes through franchising arrangement with private coaching institutions even for the purpose of conducting courses through distance mode.

43. This issue stands further clarified in the public notice issued by the UGC on 04.06.2015 wherein it has been categorically brought to the notice of the public that in terms of the prevalent policy, State Universities (both Public and Private) cannot set up their off-campus/study centres outside the State where they have been established.

44. In view of the various pronouncements of the Hon’ble Supreme Court as taken note of in this judgment and in view of the various public notices issued by the UGC, it is absolutely crystal clear that the petitioner could not act as a franchisee of the Sikkim Manipal University, yet it made all endeavours to harass the private respondents by driving them to otherwise avoidable litigation. In such scenario, it is bounden duty of the Court to curb such kind of litigation. Such like petitions cannot be encouraged since the judicial system in the Country has already choked and such litigants are only consuming the Court’s time for a wrong cause.

45. This issue has recently been considered in detail by a learned Division Bench of this Court in CWP No.4240 of 2015, titled as ‘Om Prakash Sharma versus State of H.P. and others’, decided on 19.04.2016, wherein it was held as under:-

'1. One of the reasons for overflow of Court dockets is the frivolous litigation in which the Courts are engaged by the litigants. Therefore, one of the greatest challenge before the judiciary today is to curb and tackle the frivolous litigation. The judicial system is being not only choked but flooded with false claims and scarce and valuable time of the Court is being consumed for a wrong cause. Undeniably, false claims are a huge strain on the judicial system.

2. In a recent judgment in Subrata Roy Sahara vs. Union of India, (2014) 8 SCC 470, the Hon’ble Supreme Court observed that the Indian judicial system is grossly afflicted with frivolous litigation and ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. The Hon’ble Supreme Court discussed the menace of frivolous litigation in the following terms:

'191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without fault on his part. He prays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault?....

Xxx xxx xxx

194. Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to Court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and ill-considered claims, to somehow or the other, defeat the process of law. …'

17. It is rather shocking that the petitioner despite having been reprimanded by this Court in the first case has not learnt any lesson. Even at that stage this Court was constrained to observe that it was only in view of the persuasive submissions made by the learned counsel for the petitioner, apologetically for the misconceived averments and prayers that the writ petition is dismissed.

18. Thereafter again, this Court made serious observations against the petitioner’s conduct and dismissed the petition being CWP No. 5922 of 2012 with costs of Rs. 50,000/-. Yet, un-deterred the petitioner has approached this Court, that too, against the contents of a letter which only call upon him to furnish certain documents. But the inflated ego of the petitioner probably drives him to file the instant litigation. In such scenario, it is the bounden duty of the Court to curb such kind of litigation. Such like petitions cannot be encouraged since the judicial system in the country is already choked and such litigants are only consuming Courts time for a wrong cause.

19. It has to be remembered that the Court proceedings are sacrosanct and cannot therefore be permitted to be polluted. Judicial system cannot be allowed to be abused and brought to its knees by unscrupulous litigants.

20. This aspect of the matter has been elaborately dealt with by the Hon’ble Supreme Court in K.K.Modi vrs. K.N.Modi and others, reported in (1998) 3 SCC 573 has dealt in detail with the proposition as to what would constitute an abuse of the process of the Court, one of which pertains to re-litigation. It has been held at paragraphs 43 to 46 as follows:

43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the Court" thus: "This terms connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . . . . . . .

The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."

44. One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.

45. In the case of Greenhalgh v. Mallard (1947) 2 All ER 255, the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court.

46. In Mcllkenny v. Chief Constable of West Midlands Police Force (1980) 2 All ER 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs ' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels.

21. Similarly, the Hon’ble Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, reported in (2013(2) SCC 398, has dealt in detail with 'abuse of process of Court' in the following terms:

Abuse of the process of Court:

'31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.

32. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:

32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.

32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.

32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.

32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.

32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.

32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted 'visa'. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].

33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R.Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held:

'15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:

'The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights.'

……………………………….

12. The further question wh ich now arises is as to how to curb this tendency of abuse of process of court. As suggested in Kishore Samrita (supra), one of the ways to curb this tendency is to impose realistic or punitive costs. The Hon’ble Supreme Court in Ramrameshwari Devi and others Vs. Nirmala Devi and others, (2011) 8 Supreme Court Cases 249 took judicial notice of the fact that the courts are flooded with these kinds of cases because there is an inherent profit for the wrongdoers and stressed for imposition of actual, realistic or proper costs and it was held:-

'52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:

A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial Judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.

B. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at the truth of the matter and doing substantial justice.

C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

D. The court must adopt realistic and pragmatic approach in granting mesne profits. The court must carefully keep in view the ground realities while granting mesne profits.

E. The courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing the parties concerned appropriate orders should be passed.

F. Litigants who obtained ex parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No One should be allowed to abuse the process of the court.

G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem and the court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the trial court should prepare a complete schedule and fix dates for all the stages of the suit, right form filing of the written statement till pronouncement of the judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearing fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.'

46. In view of the aforesaid discussion, I not only find no merit in these petitions but am of the firm view that the same are absolutely frivolous and, therefore, deserve to be dismissed with costs. The petitions are accordingly dismissed with costs of Rs. 10,000/- each to be paid by the petitioner to the H.P. State Legal Services Authority (for short ‘Authority’) within a period of three months. On failure to do so, the Authority shall be competent to execute this judgment through the process of the Court. Registry is directed to send a copy of this judgment to the Authority.

However, the matter cannot be laid to rest here.

47. The private institutions cannot be permitted to operate like money minting institutions, rather it has to be ensured that they comply with all the rules, regulations and norms before they are granted permission to operate within the State of Himachal Pradesh. The innocent people of this State cannot be allowed to be duped any further.

48. History is witness to the fact that it is education alone, which is the backbone of progress of a country. 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.

49. The term ‘education’ would mean a process of developing and training the powers and capabilities of human being. 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.

50. Mushroom growth of ill-equipped, understaffed and unrecognized educational institutions was noticed by the Hon’ble Supreme Court in State of Maharashtra versus Vikas Sahebrao Roundale and others (1992) 4 SCC 435 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.

51. The Hon’ble Supreme Court in Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College versus National Council for Teachers’ Education and others (2012) 2 SCC 16 while rejecting the prayer of the institutions to permit students to continue in unrecognized institutions, observed that mushroom growth of ill-equipped, understaffed and unrecognized educational institutions has caused serious problems with the students who joined the various courses.

52. It is unfortunate that despite repeated pronouncements by the Hon’ble Supreme Court for over the past two decades deprecating the setting up of such institutions, the mushrooming of schools, colleges, universities, technical boards and institutions continues all over the State at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the statutory provisions.

53. Judicial notice can also be taken of the fact that there are various advertisements published day in and day out in print as also visual media offering various courses, whereby 8th fail student can appear in 10th class and similarly a 10th class fail student can appear in 12th class. All this unfortunately is happening right under the nose of the State Government. It is difficult to fathom and believe that the functionaries of the State

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would have no knowledge of the same or would not come across such misleading advertisements. 54. It is not difficult to understand that the education system in India is not only large but is also complex with more than 700 universities (736 as on 30.09.2015-UGCs) and more than 35000 affiliated colleges enrolling more than 20 millions students. In such scenario, the mushrooming of private universities has only led to a cut-throat competition leading to 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. 55. The State and the Central Government have enacted various laws to tackle this wide spread menace of commercialization of education and one such step in this regard was the promulgation of the H.P. Private Education Institutions (Regulation) Act, 1997 (for short ‘Regulation Act, 1997) and thereafter the H.P. Private Educational Institutions (Regulatory Commission) Act, 2010. 56. Unfortunately not only the aforesaid statutes are opposed tooth and nail, but the provisions contained therein are implemented more in breach. This would be clearly evident from the fact that though Regulation Act was enacted in the year 1997, but the Rules therein came to be finally published only in the year 2003, that too with the intervention of this Court. Despite these rules in place the private education institutions do not comply with the provisions contained therein. The Private Education Institutions including schools do not have the requisite infrastructure, nor do they maintain the accounts and have further failed to constitute the parent teacher associations and as if that was not enough, would charge exorbitant fees. 57. 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'. 58. That apart, it is the responsibility of the institution imparting education to set up proper infrastructure for the students and, therefore, the fee charged towards building fund is both unfair as well as unethical. 59. Thus, there is an urgent need for Government intervention, correcting the systematic anomalies or else if commercialization persists and continues to grow unabated, then anything and everything will only be aimed at exploiting and manipulating for profit insofar as the higher education is concerned. It is, therefore, high time that the respondent-State acts responsibly by conducting a fresh investigation of all these institutions. 60. In these given circumstances, 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 and submit report regarding compliance of the H.P. Private Educational Institutions (Regulation) Act, 1997 within three months. Special emphasis and care shall be taken to indicate in the report as to whether the private institutions have the requisite infrastructure, parents teacher associations, qualified staff, whether these institutions are maintaining the accounts in terms of Rule 6 and are regularly submitting all the information in the forms prescribed under the Rules and are further charging the ‘fee’ as approved by the Govt. 61. The Committee shall further report regarding violations being carried out by the educational institutions with respect to the guidelines issued by the UGC from time to time as have otherwise been taken note of in this judgment and shall be free to report violation of any Act, Rule, statutory provisions, guidelines etc., irrespective of the fact that the same have been issued by the Central or the State Governments. 62. The Committee shall also keep in mind the provisions of the UGC Act, UGC (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003, instructions issued by the UGC from time to time, more particularly, the public notices issued on 27.06.2013 and thereafter on 04.06.2015 quoted in extenso hereinabove. It shall specifically report as to whether any University/Deemed University/Institution is offering any programme through open and distance learning (ODL) in gross violation of the policy of the UGC and, at the same time also issuing misleading advertisements by stating that their programmes are recognized. 63. In the meanwhile, the respondent-State is directed to ensure that no private education institution is allowed to charge fee towards building fund, infrastructure fund, development fund etc. 64. 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 on the notice board which shall be placed at the entrance of the campus and on their websites:- i) Faculty and staff alongwith their qualifications and job experience (profile). ii) Details of Infrastructure. iii) Affiliation alongwith certificate (s) of affiliation. iv) Details of Internship and placement. v) Fees with complete breakup and details. vi) Extra curricular activities with complete details. vii) PTA-with address and telephone numbers of its members. viii) Transport facilities with details. ix) Age of the institute and its achievements (if any). x) Availability of scholarships with complete details. xi) List of alumni (s) alongwith complete addresses and telephone numbers. The aforesaid information shall also be displayed on the website of all private educational institutions and in case any educational institution is currently not having its own website, the same shall be created within one month and immediately thereafter the aforesaid information would be displayed on the website. 65. Any violation of these directions shall be viewed seriously and shall constitute contempt of Court order. 66. List for compliance of the aforesaid judgment on 29.07.2016.
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