Praneeth K. and Ors. vs University Grants Commission (Ugc) and Ors.

Guidelines dated 06.07.2020, issued by University Grants Commission (UGC) – Directing the Universities/ Colleges to complete terminal semester/ final year examinations by 30.9.2020 – Ministry of Human Resource Development by OM dated 06.07.2020 formulated SOP for conducting the examinations as per the UGC Guidelines which was settled by Ministry of Health and Family Welfare – Ministry of Home Affairs permitting to conduct the examination – State of Maharashtra as well as Maharashtra State Disaster Management Authority, in view of situation due to pandemic COVID-19 took decision not to hold examination for the final year courses and to promote the students on the basis of previous performance and internal assessment of the students – Writ Petition challenging the UGC Guidelines and the Orders of Ministries being ultra vires Arts. 14 and 21 of the Constitution – Orders of State of Maharashtra and State Disaster Management Authority also challenged – Held: The UGC Guidelines are statutory having been issued in exercise of power u/s. 12 of the UGC Act – They are not beyond the domain of UGC as they relate to co-ordination and determination of standards of education in institutions of higher education – The Guidelines are in compliance with s. 12 of UGC Act – They are neither unreasonable nor arbitrary and hence not violative of Art. 14 – SOP for conducting the examinations shows that UGC and the ministries are fully concerned with the health of all the stakeholders and hence the Guidelines are not violative of Art. 21 – The UGC Guidelines being referable to UGC Act, 1956 which was enacted in reference to Entry 66 of List I of VII Schedule, shall have precedence as compared to any decision taken by the State – Therefore, the decision of the State and Disaster Management Committee to promote Final year/ terminal semester examination being not within domain of Disaster Management Act and being contrary to guidelines issued under Central enactment, cannot be upheld – However the OM and letter of Central Government permitting for holding the examination shall not fetter the power of the State Disaster management Authority to take appropriate measures to contain the pandemic – Hence, UGC Guidelines in so far as it directs holding of examination by 30.09.2020 shall be overridden by any contrary decision taken under Disaster Management Act, 2005 – The State is at liberty to seek extention of deadline of 30.09.2020 – Constitution of India – Arts. 14 and 21 VII Schedule List I Entry 66; List II Entry 25 – University Grants Commission Act, 1956 – s. 12 – Disaster Management Act, 2005. University Grants Commission Act, 1956:

s. 12 – Interpretation of – Expression ‘other bodies’ used in opening part of the Section, would not include State Disaster Management Authority or health experts – It is not mandatory duty of University Grants Commission to consult with the Universities or other bodies concerned, in all cases – The expression “in consultation with Universities or other bodies concerned” has to be read to mean where consultation is necessary. Disposing of the matters, the Court

HELD: 1.1. Education including university education, is a concurrent subject where both State legislature as well as Parliament have legislative competence. Entry 11 of List II of Seventh Schedule of the Constitution, as existed prior to Constitution (Forty-second Amendment) Act, 1976 as well as Entry 25 of List III is subject to the provisions of Entry 66 of List I, which is the Constitutional Scheme delineated by Seventh Schedule of the Constitution of India. [Para 49][953-C-D] Gujarat University and Anr. v. Shri Krishna Ranganath Mudholkar and Ors. AIR 1963 SC 703 : [1963] Suppl. SCR 112; Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120; Dr. Sadhna Devi and Ors. v. State of U.P. and Ors. (1997) 3 SCC 90 : [1997] 2 SCR 186 – followed.

Professor Yashpal and Anr. v. State of Chhattisgarh and Ors. (2005) 5 SCC 420 : [2005] 2 SCR 23; Maa Vaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh and Ors. (2013) 2 SCC 617 : [2012] 13 SCR 810– relied on.

1.2 Section 12 of University Grants Commission Act, 1956 enumerates the functions of University Grants Commission and provides that it shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. The use of expression “examination” in Section 12 itself makes it clear that steps taken by the UGC under Section 12 may relate to the “examination as well”. The standards of education in an institution depends on various factors, one of which includes “the standard of examinations held including the manner in which the papers are set and examined”. Therefore, the Guidelines dated 06.07.2020 are not beyond the domain of the UGC and they relate to coordination and determination of standards in institutions of higher education. [Paras 57 and 62][960-H; 961-A-B; 962-H]

Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others (2016) 7 SCC

353 : [2016] 3 SCR 579 – held inapplicable.

1.3 UGC being an expert body is entrusted with duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. In academic matters unless there is a clear statutory violation, this Court shall keep their hands off since the issues fall within the domain of the experts. [Paras 54 and 55][959-C, F]

University Grants Commission and Anr. v. Neha Anil Bobde (Gadekar) (2013) 10 SCC 519 – relied on.

2.1 The Guidelines dated 29.04.2020 contains academic calendar suggested for the academic session 2019-2020 and dates for conduct of examinations were also suggested as 01.07.2020 to 31.07.2020. It is true that Guidelines mentioned that Guidelines are advisory in nature and each University may chart out its plan of action taking into consideration the issues pertaining to pandemic COVID-19. A reading of the Guidelines indicate that ample latitude was given to the Universities to conduct terminal/intermediate/ semester year examinations in offline and online mode. The Guidelines, however, cannot be read to mean that Guidelines dated 29.04.2020 left it to the wisdom of the Universities to either conduct terminal semester/final year examinations or not to conduct, which is clear from clauses 4 and

5 of the Guidelines, under the heading “Examinations”. The Guidelines dated 29.04.2020 was issued for a purpose and object with latitude to the Universities to chart their own plan/course but it cannot be said that Universities were not to follow the Guidelines on the pretext that it uses the expression “advisory”. [Para 65][965-E-H; 966-A-C]

2.2 The Revised Guidelines dated 06.07.2020 were issued looking to the situation that COVID-19 cases are still rising and likely to increase further. The Guidelines dated 06.07.2020 in fact grant further time requiring the completion of examination by 30.09.2020. Looking into the substance of the Guidelines dated 29.04.2020 and Revised Guidelines dated 06.07.2020, it is clear that Guidelines dated 06.07.2020 are in continuation to the earlier Guidelines and not contrary to the earlier Guidelines. The Guidelines were issued with the object that a uniform academic calendar be followed by all the Universities and final terminal semester/final year examinations be held. With regard to intermediate semester/year examination, the earlier UGC Guidelines dated 29.04.2020 have been continued even in the Revised Guidelines dated 06.07.2020. Therefore, the Guidelines dated 06.07.2020 cannot be said to be contrary to the earlier Guidelines dated 29.04.2020. [Para 65][966-C-F]

2.3 Guidelines have been issued by the UGC in exercise of power under Section 12 of UGC Act. Section 12 provides that it shall be the general duty of the Commission to take all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. The words “all such steps” are of wide import. The steps referred to in Section 12 may include issuance of guidelines, directions, circulars etc. The Guidelines dated 06.07.2020 has to be treated to have been issued in exercise of statutory powers vested in the Commission under Section 12. Guidelines issued in exercise of statutory powers, thus, cannot be said to be non-statutory. [Para 66][966-G-H; 967-A]

2.4 The University Grants Commission, in exercise of power under Section 26 sub-section (1) of the UGC Act have made the Regulations namely, “the UGC (Minimum Standards of Instruction for the Grant of the Master’s Degree through Formal Education) Regulations, 2003”. Regulation 6 thereof deals with “examination and evaluation”. The statutory Regulation, 2003 thus, categorically requires Universities to adopt the Guidelines issued by the UGC, hence, it is the statutory duty of the Universities to adopt the guidelines issued by the UGC. It is the statutory obligation of the Universities to adopt the Guidelines and the Guidelines cannot be ignored by terming it as nonstatutory or advisory. [Paras 66 and 67][967-B-D] Professor Yashpal and Anr. v. State of Chhattisgarh and Ors. (2005) 5 SCC 420 – relied on.

3.1 The revised guidelines dated 06.07.2020 have been challenged claiming that it violates Article 14 of the Constitution, as they discriminate between the students of Final year and First/Second year. The Final year/terminal semesters examinations are important because the learning process is a dynamic interaction where the only way to figure out what students know is to seek evidence of their knowledge and to evaluate it. Performance in examination especially Final year/terminal semester examination are reflection of competence of the students. Terminal semester/Final year examination also provides an opportunity to the students to improve upon their overall score/marks which are very crucial for academic excellence and opportunities of employment. Final year/terminal semester examination of underGraduate or post-Graduate is an opportunity for student to show his optimum calibre which pave his future career both in academics and employment. The differentiation made by revised guidelines to hold Final year/ Terminal semester examination has a rational basis and there is an intelligible differentia between the student of Final year/Terminal semester and other students. There is no unreasonableness or arbitrariness in the revised guidelines of University Grants Commission dated 06.07.2020 which require all Universities/ Collages to conduct at least the final year/terminal semester examination.[Paras 68, 70 and 71][967-F; 968-A-D]

3.2 It is also not correct that the guidelines failed the test of Article 14 because they apply throughout India and being one fixed date i.e. 30.09.2020 irrespective of the conditions prevailing in the individual States/Universities. Even the earlier guidelines dated 29.04.2020 provided for an academic calendar which mentioned 01.07.2020 to 15.07.2020 for conduct of Terminal semester/Final year examination and 16.07.2020 to 31.07.2020 for Intermediate semester/year examination. When the academic calendar is set, fixed dates are always given for uniformity. The UGC had rightly fixed a date for completion of the Terminal semester/Final year examination throughout the country to maintain uniformity in the academic calendar. The students who look forward for admission in higher classes or take employment require final degree for their career prospect and to maintain uniformity in dates by which final examinations are over is with the object of students welfare and for their career. [Paras 72 and 73][968-F-H; 969-A-B]

3.3. The features in the revised guidelines clearly indicate that expert body took measures in the interest of the students and their academic career. The revised guidelines has granted further time for completion of examination till end of September, 2020, which was a step to facilitate Universities and Colleges to complete their examination which was a reasonable step in wake of the Pandemic. The guidelines made the conduct of examination flexible by providing three modes of examination:(a) Offline (Pen and Paper)(b) Online (c) Blended (Online + Offline). The revised guidelines also made a provision of examination through special chance in case a student of Terminal semester/Final year is unable to appear in the examination due to any reason. The provision for giving special chance to appear in examination is also in the interest of the students to protect those students who due to any reason are unable to appear in the examination. The above measures taken in the revised guidelines are reasonable and the criticism of the guidelines that they are unreasonable and manifestly arbitrary are without any substance. Thus the revised guidelines are not violative of Article 14 of the Constitution of India. [Para 75][969-C-H]

4.1 There can be no doubt that it is the duty of the State to take care of the health of its citizens. The various measures taken by the specified authorities under the Disaster Management Act, 2005, are only with the object to contain the Pandemic and protect the health of citizens of the country. The revised guidelines were issued taking into consideration the fact that the number of covid cases are still rising and likely to increase further which fact has been categorically mentioned in the beginning of the revised guidelines itself. Further, clause 6 of the revised guidelines specifically provides that every University/Institution has to ensure that it is prepared in all respect to carry out the academic activity following necessary protocols, guidelines, directions, advisories issued by the Central/ State Government from time to time in view of Covid-19. The University Grants Commission is conscious of increasing number of covid cases throughout the country and the revised guidelines have extended the period for completion of examination from 31.07.2020 to 30.09.2020 which was only due to the reason that due to Pandemic, Universities/Colleges may not have been able to hold the examination. [Paras 77, 78 and 79][970-C-F, H; 971-A]

4.2 After issuance of revised guidelines dated 06.07.2020 OM dated 06.07.2020, Ministry of Human Resource Development (MHRD), has issued detailed guidelines for conduct of examination which guidelines were duly vetted by Ministry of Health and Family Welfare(MoHFW). The guidelines for conduct of examination were circulated by University Grants Commission vide its letter dated 08.07.2020. Standard Operating Procedure for conduct of examination makes it abundantly clear that UGC, MHRD, and Ministry of Health and Family Welfare are fully concerned with the health of all stakeholders i.e. the students as well as exam functionaries. Therefore, it cannot be said that the revised guidelines are violative of Article 21 of the Constitution. [Paras 80, 81 and 82][971-C; 974-B-C]

5.1 Section 12 is part of Chapter III of UGC Act, 1956, which deals with “Powers and functions of the Commission”. The use of the word ‘Universities or other bodies concerned’ in the opening part of the Section has been with a purpose of referring the Universities or other bodies concerned for whom the function has to be performed by. The enumerations given from clause (a) to (j) indicate that apart from Universities, the function also include advice to the Central Government or any State Government on allocation of any grant to the Universities or advise Central Government or any State Government or any Universities on any question which may be referred to the Commission by the Central Government or the State Government. Thus, the expression ‘other bodies’ used in the opening part of the Section is in reference to other bodies apart from Universities enumerated in Section 12. ‘Other bodies’ as used in Section 12 would not include State Disaster Management Authority or health experts. Section

12 never contemplated any such “bodies”. Furthermore, the State Disaster Management Authority came into existence only after enactment of Disaster Management Act, 2005, no such concept was there when the UGC Act, 1956 was enacted. The use of the word ‘concerned’ after ‘Universities or other bodies’ has specific purpose and meaning. The consultation with the Universities or other bodies concerned was in reference to a particular function which was enumerated in clause (a) to (j) and it has specific reference and “Universities” or “other bodies” were referred to in the above context. Section 12 cannot be interpreted in a manner that for taking any measure with regard to coordination of university education and for determination and maintenance of standards of teaching examination in the Universities, the UGC should consult each and every University of each and every State and only then, such measures can be taken. Reading the provision in above manner shall make the functioning of UGC unworkable. There are more than nine hundred Universities in the country and to require UGC to consult more than nine hundred Universities for taking any measure will make the functioning impossible and impractical. [Paras 84, 86 and 87][974-H; 977-CH; 978-A-B]

5.2 Section 12 cannot be interpreted in a manner that for taking any steps by the UGC, there is a mandatory requirement of consultation of all the States/Universities failing which no measures can be taken by the University Grants Commission. Clause (j) of Section 12 is couched in a very vide manner which empower the Commission to perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above function. Any function which may be deemed necessary by the Commission can be performed. For performance of its function by the Commission, the Commission of its own is fully competent to take decisions, issue any directions, guidelines, etc. The Commission may take assistance of any Committee of experts in discharge of its functions for which there is no prohibition in the statutory scheme. [Para 88][978-B-E]

5.3 The statutory scheme as delineated by Section 12 makes it clear that for the purposes of performing its functions under the Act as enumerated in clause (a) to (j), it is not mandatory duty of the Commission to consult with the Universities or other bodies concerned in all cases e.g. while allocating and disbursing out of the fund of the Commission, grants to the Universities as enumerated in sub-clause (b) and (c). It is not necessary to consult the university to whom the grant is to be allocated and disbursed. The expression “in consultation with the Universities or other bodies concerned” has to be read to mean where consultation with Universities or other bodies concerned is necessary without which the Commission is unable to perform its functions. [Para 90][979-D-F]

5.4 The impugned revised Guidelines have been issued after a report of an expert committee consisting of academicians and experts. The UGC is empowered to perform such other functions as may be deemed necessary by the Commission. If the Commission felt it necessary to issue Guidelines after obtaining a report from the expert committee, no exception can be taken to the procedure adopted by the Commission. The Guidelines dated 29.04.2020 as well as revised guidelines dated 06.07.2020 are general in nature and not confined to any particular university or any particular state. Hence, it cannot be said that UGC is obliged to consult all Universities or States before issuance of the guidelines. Therefore, guidelines dated 06.07.2020 cannot be said to be violative of Section 12 of UGC Act, 1956. [Paras 92-94][980-B-E]

6.1 The Disaster Management Act, 2005 empowers the State Disaster Management Authority as well as the State Government to take decision for prevention and mitigation of a disaster and the action taken by the authorities under the Disaster Management Act have been given overriding effect to achieve the purpose and object of the Act. In case of a disaster the priority of all authorities under the Disaster Management Act is to immediately combat the disaster and contain it to save human life. Saving of life of human being is given paramount importance and the Act, 2005 gives primacy, priority to the actions and measures taken under the Act over inconsistency in any other law for the time being in force. [Para 99][984-F-H]

State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 : [2014] 9 SCR 1063 – referred to.

6.2 A perusal of the OM dated 06.07.2020 indicates that the Ministry of Home Affairs has agreed to the request of the Ministry of Human Resource Development and granted exemption for the opening of educational institutions for the purpose of holding examinations/ evaluation work for Final Term Examinations of the Universities/Institutions. The said OM as well as letter of the Ministry of Home Affairs cannot be read to mean that it fettered the jurisdiction of the State Authority to take a decision considering the situation in a State with regard to conduct of examinations. The cumulative effect of OM dated 06.07.2020 and letter dated 06.07.2020 shall be that Government of India granted exemption for holding the examinations which shall be treated as exception to the guidelines dated 29.06.2020 issued by the Ministry of Home Affairs where Schools, Colleges, educational and coaching institutions were to remain closed till 31.07.2020. The said OM and letter dated 06.07.2020 permitting holding the examinations shall not fetter the power of the State Disaster Management Authority to take appropriate measures to contain the Disaster in the State. [Para 103][987-H; 988-A-C]

6.3 With regard to conduct of examinations, the State authorities are competent to assess the situation in a particular State regarding possibility of holding of examinations. No State shall permit health of its subject to be compromised that is why overriding power has been given to the State Disaster Management Authority and the State Government with regard to any inconsistency with any other law for the time being in force. There are no orders or directions in the guidelines of the National Disaster Management Authority or National Executive Committee fettering the powers of the State Disaster Management Authority and a State Government to take a decision as to whether examinations by physical mode be permitted in particular State looking to the situation in the State. Coming to the guidelines dated 06.07.2020 of the UGC insofar as it directs completion of final examinations by 30.09.2020 which direction is overridden by the decision of the State Disaster Management Authority and State Government where it resolved not to hold the examinations. Thus, the direction of the University Grants Commission in its revised guidelines dated 06.07.2020 insofar it directs the Universities and colleges to complete the final year/terminal examinations by 30.09.2020 shall be overridden by any contrary decision taken by a State Disaster Management Authority or the State Government exercising power under the Disaster Management Act, 2005. [Para 104][988-G-H; 989-A-C]

7.1 University Grants Commission Act has been enacted in reference to Entry 66 of List I. The States although have legislative competence to legislate on education including Universities but the State Legislation is subject to Entry 66 List I. The revised guidelines issued by UGC are statutory and referable to University Grants Commission Act, 1956 and shall have precedence as compared to any inconsistent decision taken by the State. The purpose and object of the Disaster Management Act, 2005 is management of disasters and for matters connected therewith. The Disaster Management is a continuous and integrated process of planning,organising, coordinating and implementing measures. [Para 107][991-D-F]

7.2 The exercise of powers by the State Disaster Management Authority or by the State Government which shall have overriding effect under Section 72 are those exercise of jurisdiction which are within the four corners of the Disaster Management Act, 2005. When the State Disaster Management Authority and State Government take a decision that for mitigation or prevention of disaster it is not possible to hold physical examination in the State, the said decision was within the four corners of Disaster Management Act, 2005. However, the decision of the Disaster Management Authority or the State Government that students should be promoted without appearing in the final year/terminal semester examination, is not within the domain of the Disaster Management Act, 2005. The decision to promote students and grant Degree by a State if contrary to any Central enactment or guidelines issued thereunder the Central enactment and the guidelines thereunder shall have precedence by virtue of the same being referable to Entry 66 List I. Thus, the State Disaster Management Authority and the State Government has no jurisdiction to take a decision that the students of final year/terminal examination should be promoted on the basis of earlier years assessment and internal assessment whereas the UGC guidelines dated 06.07.2020 directed specifically to conduct final year/terminal semester examination. The UGC guidelines dated 06.07.2020 in the above respect shall override the decision of the State Government and the State Disaster Management Authority regarding promoting the students, does not fall within the jurisdiction of the Disaster Management Act, 2005 and shall have no protection of Section

72 of the Disaster Management Act, 2005. The decision of the State or the State Disaster Management Authority being contrary to revised guidelines of the University Grants Commission cannot be upheld and has to give way to the guidelines of UGC which is the Authority to issue guidelines for determination and maintenance of standards of education and teaching of the Universities. [Para 109][992-D-H; 993-A-B]

8. The prayer to quash the revised guidelines dated 06.07.2020 issued by the University Grants Commission and OM dated 06.07.2020 issued by the Ministry of Human Resource Development and letter dated 06.07.2020 issued by the Ministry of Home Affairs is refused. [Para 111(1)][995-C-D]

9. The decision taken by the State Disaster Management Authority/State not to hold final year/terminal semester examination by 30.09.2020 in exercise of power under Disaster Management Act, 2005 shall prevail over deadline fixed by the University Grants Commission i.e. 30.09.2020 in respect to the concerned State. [Para 111(2)][995-D-E]

10. The decision of the State/State Disaster Management Authority to promote the students in the final year/terminal semester on the basis of previous performance and internal assessment being beyond the jurisdiction of Disaster Management Act, 2005 has to give way to the guidelines of UGC dated 06.07.2020 directing to hold examination of final year/terminal semester. The State and University cannot promote the students in the final year/terminal semester without holding final year/terminal examination. [Para 111(3)][995-F]

11. If any State/Union Territory in exercise of jurisdiction under Disaster Management Act, 2005 has taken a decision that it is not possible to conduct the final year/terminal semester examination by 30.09.2020, liberty is granted to such State/Union Territory to make an application to the University Grants Commission for extending deadline of 30.09.2020 for that State/Union Territory which shall be considered by UGC and rescheduled date be communicated to such State/Union Territory at the earliest. [Para 111(4)][995-G-H; 996-A]