(Through Video Conferencing)
Nitin Jamdar, J.
1. Rule. Rule made returnable forthwith. Respondents waive service. Taken up for final disposal.
2. The Petitioner SVKM’s Mithibai College is granted a status of an Autonomous Educational Institute by the University Grants Commission. The Respondents-Mumbai University, by the impugned communications, has refused to issue degree certificates to the batch of students for the year 2019-20 and some students out of the batch of 2018-19 on the ground that though the Petitioner- College can have its own grading system, it was not entitled to change the grading system of the course which has commenced before the grant of autonomous status, mid-way, and it should introduce it from the first year. Being aggrieved by the action of the University withholding the issuance of degree certificates and for a direction to the University to issue the certificates, the Petitioners have filed the present Petition contending that assessment of students is the prerogative of the autonomous college and there is no such embargo in law that the Petitioner College has to introduce the grading system from a particular point in time.
3. The University Grants Commission is entitled to confer an autonomous status on a college under the ‘University Grants Commission (Conferment of Autonomous Status Upon Colleges and Measures for Maintenance of Standards in Autonomous Colleges) Regulations, 2018’, the Regulations of 2018. The object of these Regulations is to coordinate and determine the standards of higher education. UGC has recognized that college autonomy is instrumental for providing broad-based quality education and excellence. The Regulations of 2018 lay down criteria for granting autonomy and conditions of an autonomous college. Before a college is conferred with autonomy, there is an assessment whether a college deserves such autonomy. The criteria for grant of autonomy involves the academic, administrative and financial capacity of the college. It also includes assessing the responsiveness of administrative structure; and the motivation and involvement of faculty in promoting innovative reforms.
4. The autonomous colleges are entitled set up their administrative committees and bodies. The governing body includes the nominee of the affiliating university, academicians nominated by the State and the nominee of the UGC. The academic council includes academicians from outside the college and nominees of the affiliating university. The autonomous colleges have complete administrative autonomy and have the privilege of appointing their own administrative staff and teaching faculty, including the principal, to be appointed as per the Regulations framed by the UGC, as amended from time to time. The autonomy granted to the college is at the institutional level and is not partial, and covers the programmes at all levels such as Undergraduate. Post-graduate and PhD programmes offered by the college. The courses introduced by the college after the conferment of autonomous status automatically come under the purview of autonomy. All students enrolled at the time of grant of autonomy to the college get covered under the autonomy.
5. The Regulations of 2018 permit autonomous colleges to evolve methods of assessment of students performance, the conduct of examinations and notifications of results. Regulation 3.4 states that the autonomous college can announce results, issue mark sheets, migration and other certificates; however, the degree shall be awarded by the University with the name of the college on the degree certificate. The second part of this Regulation is the genesis of the dispute before us.
6. The Petitioner No.1 – SVKM’s Mithibai College is a Linguistic Minority Educational Institute. The Petitioner No.2 is the Principal of the College. Both are referred to as the Petitioner. The Respondent No.1 is the University of Mumbai (the University). The Respondent No.2 is the Vice-Chancellor of Respondent No.1 – University. Respondent No.3 is the Board of Examination and Evaluation of Respondent No.1-University (the Board).
7. On 28 March 2018, the UGC conferred autonomous status on the Petitioner for ten years under the Regulations of 2018. On 7 June 2018, the University issued a notification declaring the Petitioner as an autonomous college. The Petitioner, as per the UGC Regulations of 2018, constituted Governing Body, Academic Council, Board of Studies. The Governing Body consisted of a nominee of UGC and the University. In the year 2018, as per the autonomy granted, the Petitioner sought to change the grading system for all the courses conducted by the Petitioner with effect from the Academic Year 2019-20. A decision to change the gradation system was taken in the Academic Council meeting. On 16 April 2019, the proposal for changing the grading system was placed before the Governing Body. The new grading system introduced by the Petitioner, inter alia, stated that instead of 80% and above for 'Outstanding', it is now 90% and above, and one category, the category 'C', is split into two categories.
8. On 16 June 2020, with the feedback from the students, the Governing Council of the Petitioner decided to include total marks and percentage along with grades in the statement of marks. After the decision, the grading system for all courses by the Petitioner – College for Academic Year 2019-20 was notified.
9. The University issued letters to the Petitioner on 6 July 2020, 16 August 2020 and 5 March 2021 that the Petitioner ought not to implement the grading system regarding the courses mid-way and should be implemented in respect of courses commenced after the grant of autonomy and from the first year. When the Petitioner submitted the file for issuance of degree certificates to the students for all courses conducted by the Petitioner, the University refused to issue degree certificates in respect of 128 students of ATKT Batch of 2018-19, 1380 students of Regular Batch of 2019-20 and 255 students of Postgraduate Regular Batch.
10. Aggrieved by the Respondents withholding the degree certificates the Petitioner has filed the present Petition. The Petitioner has challenged the communications dated 6 July 2020, 16 August 2020 and 5 March 2021. The Petitioner has sought a direction to the Respondents to issue the degree certificates.
11. On 4 May 2021, notice was issued to the University in this Petition. Considering that the notice was made returnable after summer vacation and that the Petitioners had expressed urgency that many students are waiting for the degree certificates, the University was directed to examine the matter in the meanwhile. It was observed that if the University found that the Petitioners' grievance was justified, it is open to the University to take necessary steps without waiting for further orders. In case the University found that the grievance is not justified, Reply was to be filed.
12. After notice with the order dated 4 May 2021 was received, Respondent No.3 - the Board of Examination constituted a Committee to examine the issue. The Committee submitted its report on 23 May 2021 to the Board. The Committee recommended: (1) The students enrolled to University of Mumbai before autonomy status should be graded according to the grading system of the University of Mumbai. Immediate correction should be made in the marks list issued by the college to the student concern; and (2) The matter should be 're-offered to the Management Council of University of Mumbai under Provision 2(10) of the Uniform Statutes -1 of 2019 for the action as deemed fit. The Board accepted the Report. A communication based on the report was issued to the Petitioner on 31 May 2021.
13. Reply was filed in this Petition by the University on 7 June 2021, annexing the copy of the Committee's report and the communication dated 31 May 2021. The rejoinder is filed by the Petitioners, controverting the assertions taken in the Reply. The Petition was after that listed for disposal.
14. We have heard Mr. Prasad Dhakephalkar, learned Senior Advocate with Mr. Aashish Kamath, learned Advocate for the Petitioners and Mr. Akshay Shinde, learned Advocate for the Respondents.
15. The privileges of the Petitioner and the effects of being recognized as an autonomous college, in general, are not disputed by the University. The University, in its Reply, has categorically stated that the University is not disputing that the Petitioner is entitled to review existing courses and restructure, redesign and prescribe its own courses of study and syllabi, formulate new courses within the nomenclature specified by UGC, evolve methods of assessment of students performance, the conduct of examinations and notifications of results and announce results, issue mark-sheets, migration and other certificates.
16. As stated earlier, the affiliating university has to issue the degree certificates as per the underlined portion of Regulation 3.4 of the Regulations of 2018. Regulation 3.4 reads thus:
Regulation 3.4:- To announce results, issue mark sheets, migration and other certificates; however, the degree shall be awarded by the University with the name of the college on the degree certificate.
The University is withholding issuance of degree certificates to the Petitioners on three grounds.
a) The communication issued on 31 May 2021by the Respondent- Board to the Petitioner, after accepting the Committee's report, is a direction under Section 47 of the Maharashtra Public Universities Act, 2016, which the Petitioners must comply. Unless complied with, the degree certificates will not be issued. This ground is taken in the Reply affidavit;
b) As per a rule and a strong precedent, the Petitioner is not entitled to change the grading system of a course that has commenced before the grant of autonomy and not mid-way, and Petitioner should change the grading system from the first year. This is a stand taken in the impugned communications and the Affidavit-in-Reply.
c) Third ground which is orally argued, not finding a place in the Reply, is that as per Section 26(3) of the University Grants Commission Act, 1956, the power to make regulations as conferred though includes the power to give retrospective effect, no retrospective effect shall be given to prejudicially affect the interests of any person to whom such regulation may apply and the action of the Petitioner has caused prejudice to the students.
17. After the grant of autonomy, the Petitioner has the privilege of having its assessment method. Under Regulation 3.4 of the Regulations of 2018, the University has to issue the degree certificates. However, the University cannot withhold the issuance of degree certificates unless valid grounds in law are made out. If the grounds raised by the University are found to be without merit, then a direction will have to be issued to the University to perform its duty of issuance of the degree Certificates. accordingly, we will examine each of these grounds.
18. First ground is based on Section 47 of the Maharashtra Public Universities Act, 2016. The University contends that the direction of the Board on 31 May 2021, after accepting the report of the Committee, is a direction under section 47. The Petitioners contend this provision is inapplicable. According to the Petitioner, the autonomy referred to in the Universities Act of 2016 is an autonomy under that Act and not under the Regulations of 2018. Section 2(6) of the Universities Act of 2016 defines the autonomous college as the one to which autonomy is granted under the Statutes. Section 2(57) explains that the reference to Statutes in the Act of 2016 Act is to the statutes of the universities under the Act. Further, Section 47 does not refer to a grading system, which comes into play after the examination. It is unnecessary to dwell upon this issue further as the learned Counsel for the University fairly stated that Section 47 would not apply in the facts of the case. This ground taken by the University to withhold issuance of degree certificates is, therefore is not valid.
19. The second ground raised by the University is the main point put against the Petitioner in all the impugned communications. The Petitioner could not have changed the grading system in midstream, and it must be from the first year. The University wrote to the Petitioner on 6 July 2020 wherein it was stated as under:-
"In response to the Reply sent by you on email to the Hon’ble Vice-Chancellor on 26 June, 2020, I bring to your notice that any change/modification/revision to be made in the grading system has to be implemented only with effect from First Year and must not be implemented for students who have already cleared the Previous Year on the basis of earlier grading system and admitted to the next year (Second or Third Year). This rule is followed by the University as well as Autonomous Colleges affiliated to the University of Mumbai.
In your Reply you have cited the reference of St. Xavier's College and Sophia College that they have also adopted the change in grading system. Nevertheless, St. Xavier's College has implemented the change in grading system for their fresh students i.e. First Year students.
In view of strong precedent of application of revised rules only to first-year and then continuation of same in phase-wise manner, you are hereby intimated to restrict the implementation of the change in grading system for the First Year Students only.”
The stand that there is a ‘strong precedent’ was reiterated on 6 July 2020, 16 August 2020 and 5 March 2021. This contention of the University is reiterated before in the arguments. A principle based on the analogy that rules of the game cannot be changed mid- way once the game has commenced, was also urged.
20. Before we examine the validity of the University's objection, the discussion needs to be prefixed by highlighting the features of autonomy of the Petitioner in respect of assessment under the Regulations of 2018. The Petitioner as autonomous college is entitled to evolve assessment methods of students performance, the conduct of examinations and notifications of results. The Petitioner can announce results, issue mark sheets, migration and other certificates. There is a comprehensive autonomy conferred upon the Petitioner as to how to evolve assessment methods of students. When autonomy was granted to the Petitioner, the attributes of autonomy come into play, and they cannot be fettered unless specifically stipulated that a part of attributes of autonomy into operation or would come into operation upon a contingency. The University, thus, will have to demonstrate a specific embargo under a statutory instrument to restrict the Petitioner from evolving methods of assessment of students performance from a given point of time alone.
21. The University, in the impugned communication dated 6 July 2020, refers to a rule which prohibits a change in the grading system after the first year. Then in the same communication, University refers to a strong precedent. The University has not mentioned nor explained to us which Rule is referred to in this communication. We have not been shown any such specific embargo under the Regulation of 2018. No embargo under any statutory enactment is shown. The second ground in this communication is that there is a ‘strong precedent’ due to which the Petitioner should introduce revised assessment and grading from a particular point of time. This ground is also not tenable. There could be various reasons the other autonomous colleges have followed a pattern of introducing the grading system from a point in time. It does not mean that they have surrendered their autonomy. That a precedent has become a binding rule should be demonstrated with particulars. The University in the Reply enumerates no details. Therefore the University cannot impede the autonomy granted to the Petitioner on such vague and general grounds. This ground taken in the impugned orders is incorrect and has to be rejected.
22. The third ground sought to be contended by the learned Counsel for the University across the bar is based on Section 26(3) of the University Grants Commission Act, 1956. Section 26(3) reads thus:-
“Section 26(3) : The Power to make regulations conferred by this section [except clause (i) and clause (f) of subsection (1)] shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.”
The University invokes this provision to contend that the Regulations of 2018 framed under the Act and the incidents of autonomy cannot be retrospectively applied if it causes prejudice to any person.
23. Foremost, the University's assumption that the Petitioner's action in changing the grading system of all students upon grant of autonomy is retrospective is fallacious. The position is made clear by Regulations 3.3, 3.11 and 3.12 of the Regulation of 2018, which read thus:
Evolve methods of assessment of students performance, conduct of examinations, and notifications of results.
Autonomy granted to the college is at the institutional level and is not partial, and shall cover the programmes at all levels such as U.G., P.G. and Ph.D offered by the college. The courses introduced by the college after the conferment of autonomous status shall automatically come under the purview of autonomy.
Regulation 3.12 :
The students enrolled at the time of granting autonomy to the College shall also be covered under autonomy.
The Regulation 3.3. permit the Petitioner to evolve methods of assessment of students performance that includes allotting grades. Regulations 3.11 and 3.12 cover all students when autonomy is granted. This is necessary to bring uniformity for assessing the students' performance and the conduct of the examination. The object of these Regulations is to cover all the students enrolled at the time of granting autonomy, to be covered under the autonomy. Otherwise, there would be two categories of students. One governed by the reformative steps taken under the autonomy and, secondly, those out of its purview. Regulation 3.12 does not contemplate the creation of any such categories. A conjoint reading of Regulations 3.3 and 3.12 of the Regulations of 2018 shows that irrespective of the fact as to when the students have been admitted and cleared the internal examination, they form one class and could be subjected to the revised grading system by the Petitioner. Therefore there is no retrospective effect. Once the Petitioner's action under Regulation 3.3 read with Regulations 3.11 and 3.12 is not retrospective as contemplated under Section 26(3) of the Act, the concept of prejudice under this provision does not arise.
24. The University then contends that the prejudice to students by the Petitioner's actions can be considered a standalone ground to withhold degree certificates till the grades are corrected. The Affidavit-in-Reply refers to the Committee report, and the Report states that the students admitted before the date of autonomy were allotted different grades, and the students were not given the choice of selection. They were granted grades lower than the grade they were obtained in the grading system. It was stated that the college conducted examinations for ATKT students, and they were subjected to an institutional grading system. But, we note that the university's emphasis is that a different grading system per se has caused prejudice.
25. If the ground of prejudice to students is taken as a standalone ground to withhold the degree certificates, three facets need to be considered. First, the prejudice should be demonstrated as a fact and not on hypothetical assumptions. Second, the autonomous status and the right of the Petitioner to have its grading has to be kept in mind. Third, whether the University's action of withholding the degree certificates of the students is a remedy for the alleged prejudice and whether the solution suggested by the Committee to recall the certificates will cause greater prejudice.
26. The Petitioner has placed on record the details of the change in the grading system.
a) Earlier, the grading system was: for 80 percentage of marks and above the grade was O; for 70 percentage of marks and above the grade was A+; for 60 percentage of marks and above the grade was A; for 55 percentage of marks and above the grade was B+; for 50 percentage of marks and above the grade was B; for 45 percentage of marks and above the grade was C; for 40 percentage of marks and above the grade was D; and for less than 40 percent of marks, the grade was F.
b) Thereafter, as per the new grading system: for 90 percentage of marks and above, the grade was O; for 80 percentage of marks and above the grade was A+; for 70 percentage of marks and above the grade was A; for 60 percentage of marks and above the grade was B+; for 55 percentage of marks and above the grade was B; for 50 percentage of marks and above the grade was C+; for 45 percentage of marks and above the grade was C; for 40 percentage of marks and above the grade was D, and for less than 40 percent of marks the grade was F.
A statement of marks of one student is annexed to the Petition by the way an illustration. It shows that statement of marks specify not only grades but the aggregate marks and the percentage.
27. The Petitioner states that no prejudice is caused to the students by changing the assessment system in the academic year 2018-2019. The Petitioner has pointed out that the statement of marks provide not only to the grades but also to total marks and the percentage. The Petitioner contends that no student will be prejudiced as ultimately the statement of marks is not based on grades alone but on the aggregate marks and percentage. It is stated that based on the statement of marks, the students who have passed out have taken admissions for higher courses and have obtained jobs. It is also stated that this grading pattern was approved in the Academic Council and Governing Body which contains nominees of the University and UGC, and no objection by these nominees on the ground of prejudice was taken. According to the Petitioner, even if the grades are ignored, the marks and percentage will enable the proper assessment of the students for their further studies.
28. In this backdrop, it is not enough for the Respondents to merely create a chart of hypothetical situations and orally argue the case, but it should be with reference to individual students. The allegation of prejudice is a factual assertion. The affidavit in Reply is bereft of any particulars. No case of any individual student, even as an example, demonstrating how prejudice is caused, is pleaded in the Reply. There is no reference to this aspect in the Reply except a reference to the Report of the Committee. The Committee in its Report refers to an undated representation of the students. An undated representation is referred to in the impugned communication dated 16 August 2020. Neither in the impugned communications nor the Reply or Report any details are given.
29. Further, there is no explanation in the Reply and in the argument as to how, despite mentioning marks and percentage on the statement of marks (and not grades alone), prejudice is caused to the students, assuming that a different grading system causes prejudice. No student is before us complaining of prejudice. No intervention application is filed by any student. We have not been informed of any Petition by any student against the Petitioner making a grievance that they stand prejudiced because of incorrect grades. In fact, today, it is the Petitioner who is espousing the stu
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dents cause. Even to invoke the principle based on the analogy that that rules of the game cannot be changed mid-way is based on prejudice. We find that this ground raised by the Respondents to withhold the degree certificates is not justified. 30. The degree certificates of 128 students of ATKT Batch of 2018-19, 1380 students of the Regular Batch of 2090-20 and 255 students of Postgraduate Regular Batch have been withheld. It has to be kept in mind that examinations have been held. These students have passed out. They have been given a statement of marks with percentages and marks. Petitioner has averred, which is not refuted by the Respondents, based on the statement of marks students have taken admissions for higher studies in India and abroad. Some have taken up employment. The students have submitted the statement of marks to various institutions, and it is not possible to recall and resubmit the statement of marks, only for a change of grade, which will make no difference. This practical difficulty is not considered by the Board and not addressed in the reply affidavit. During the argument, the Board merely stated that it is possible to recall the statement of marks, but with no reference to the practical difficulty. The suggestion of the Committee approved by the Board to recall the statement of marks already issued, as pointed by the Petitioner, is impractical at this stage. The action of the University in not issuing the degree certificate to the students at this stage is, in fact, prejudicial to these students. 31. Thus, we hold that the reasons given by the Respondents to withhold issuance of degree certificate to the students of the Petitioner are not legal and valid, and the Respondents should proceed to issue the degree certificates they have withheld. 32. We make it clear that we have not laid down an absolute proposition that the university is denuded of all its powers vis-a-vis an autonomous college. Under Regulation 3.4 of the Regulations of 2018, the university is empowered to issue degree certificates. In this case we are not testing the validity of any action taken by the University against the Petitioner as an institution, but the action of withholding the degree certificates of the students against whom the University admittedly has no grievance. It is in that context, after having found that withholding the degree certificates is not valid and the outcome is oppressive to the students, we proceed to allow the Petition. 33. The Writ Petition is allowed. Rule is made absolute in terms of prayer clauses (a) and (b). The Respondents are directed to issue degree certificates within four weeks from today. No costs.