CIVIL APPEAL 8132/2014 on 28 December 2007

1. The petitioner was enrolled in the distance education MBAprogramme conducted by the ICFAI during the years of 2006-2008.

2. The programme was provided by the open distance learning (ODL) mode.

3. The ICAFI was granted institutional approval by the Distance

Education Bureau (DEB) on 28 December 2007 and continuation ofprovisional recognition on 6 January 2009.

4. The petitioner seeks a direction to Respondent 1, the UniversityGrants Commission (UGC) to grant ex post facto approval to theMBA qualification obtained by the petitioner from the ICFAI by theODL mode pursuant to the course undertaken by him from 2006-2008.

5. By order dated 23 October 2017, this court permitted the ICFAIto apply to the UGC for grant of ex post facto recognition. On the saidapplication being made, the UGC was directed to deal with theapplication in accordance with law.

6. The UGC, vide orders dated 5 January 2018 and 9 January2018, rejected the application of the ICFAI for ex post factorecognition for its MBA course.

7. Vide order dated 8 August 2023, this court directed the UGC toreconsider the prayer of the ICFAI for grant of ex post factoapprovalfor the MBA course conducted by it for the year 2006-07,uninfluenced by its orders dated 5 January 2018 and 9 January 2018.

8. In compliance with this direction, the UGC has passed asubsequent order dated 22 September 2023 in which the request forgrant of retrospective recognition for the ODL programmes providedby the ICFAI has been again refused, for the following reasons

contained in para 4 of the decision:

“With reference to the directions of the Hon'ble High Court Delhivide its order dated 08.08.2023, Retrospective Recognition foroffering ODL Programmes cannot be considered by UGC due inthe following facts:

Directions/actionablepointsofProf.MadhavMenonCommittee conveyed by the MHRD vide its letter no. F.No.6-20/2010-DLdated29.12.2012(Annexure-IV)wherein it is categorically mentioned that “No Conditionalor post facto recognition to be granted’.Committee conveyed by the MHRD vide its letter no. F.No.6-20/2010-DLdated29.12.2012(Annexure-IV)wherein it is categorically mentioned that “No Conditionalor post facto recognition to be granted’.

In August, 2017 UGC has submitted a Counter Affidavit inHon’ble Supreme Court of India, Special Leave Petition(Civil) Nos. 19807-08 of 2012 in the matter of Orissa LiftIrrigation corporation ltd. &ors versus Sri Rabi SankarPatro & Ors) specifically mentioned therein that UGC willnot accord ex-post facto approval or conditional approval tooffer ODL programmes.(Civil) Nos. 19807-08 of 2012 in the matter of Orissa LiftIrrigation corporation ltd. &ors versus Sri Rabi SankarPatro & Ors) specifically mentioned therein that UGC willnot accord ex-post facto approval or conditional approval tooffer ODL programmes.

Conclusion

The MHRD has issued direction vide letter (Annexure-V)F.No.2-18/2017-U3(A)dated07.10.2018ontherecommendations of Justice Reddy Committee constitutedby MHRD on the directions of Hon’ble Supreme Courtdated 03.11.2018 in Civil Appeal No.17869-17870 filed byOrissa Lift Irrigation Corp. Ltd Versus Rabi Sankar Patro &Ors that “Under no circumstances, UGC shall grantretrospective or ex-post facto recognition to any coursethrough ODL mode.F.No.2-18/2017-U3(A)dated07.10.2018ontherecommendations of Justice Reddy Committee constitutedby MHRD on the directions of Hon’ble Supreme Courtdated 03.11.2018 in Civil Appeal No.17869-17870 filed byOrissa Lift Irrigation Corp. Ltd Versus Rabi Sankar Patro &Ors that “Under no circumstances, UGC shall grantretrospective or ex-post facto recognition to any coursethrough ODL mode.

Accordingly UGC vide public notice (Annexure-VI) dated20.11.2018,informedallthestakeholderabouttheactions/decision/information based on the recommendationsof the Justice Reddy Committee on ODL course.20.11.2018,informedallthestakeholderabouttheactions/decision/information based on the recommendationsof the Justice Reddy Committee on ODL course.Further, there is noprovision in University GrantsCommission (Open and Distance Learning ProgrammesandOnlineProgrammes)Regulations,2020andamendmenttoaccordretrospectiveorex-postfactorecognition.”Commission (Open and Distance Learning ProgrammesandOnlineProgrammes)Regulations,2020andamendmenttoaccordretrospectiveorex-postfactorecognition.”

.

9. The petitioner has filed an affidavit by way of response to the UGC’s affidavit whereunder the aforesaid decision was enclosed,

contesting the grounds on which the UGChas decided to refuse therequest for grant of ex post facto recognition to the ODL programmesprovided by the ICFAI.10.It is seen that one of the grounds on which the UGC hasjustified its decision to refuse the request for ex post facto approval isthat, on the basis of the recommendations of the Justice ReddyCommitteeconstitutedbytheMinistryofHumanResourceDevelopment (MHRD) in compliance with the directions issued bythe Supreme Court in its judgment dated 3 November 2018 in OrissaLift Irrigation Limited v. Rabi Shankar Patro[1], the MHRD hadissued a communication to the UGC on 7 October 2018, directing theUGC to take necessary action towards complying with the saidrecommendations. Among these recommendations was, in respect ofODL courses, the recommendation that under no circumstances wouldthe UGC grant retrospective or ex post facto recommendation to anycourse provided via the ODL Mode.

11. The aforesaid communication dated 7 October 2018, issued bythe MHRD to the UGC, is not under challenge.

12. In the face of the expressed proscription contained in the saidcommunication, on the UGC granting retrospective or ex post factorecognition to any course through the ODL mode, I have queried ofMr. Mann, who appears in person, as to how this court can possiblydirect the UGC to grant ex post facto recognition to the MBA course undertaken by him with the ICFAI from 2006-2008.

13. Mr. Mann submits that, even after the aforesaid communicationhad been issued by the MHRD on 7 October 2018, certain TeacherTraining Courses, provided by the National Council for TeacherEducation, were granted retrospective recognition. He has drawn myattention in this context, to notification dated 12 May 2020 issued bythe MHRD, whereby certain Teacher Education Institutions (TEIs),which are funded by the Central Government and the StateGovernment, were been granted retrospective recognition for coursesand durations mentioned in the table contained in the said notification.For example, the Indira Gandhi National Tribal University, Anuppur,has been granted retrospective recognition for the BA.B.Ed and B.ScB.Ed courses provided by it.

14. The submission is completely misguided.The Notificationdated 12 May 2020 was issued pursuant to the amendment of theNational Council for Teachers Education Act, 1993 by the NationalCouncil for Teachers Education (Amendment) Act, 2019 with effectfrom 17 August 1995, by insertion of a proviso in Section 14(1)thereof.

15. Sections 1 and 2 of the NCTE (amendment) Act, 2019 readthus:

1. (1) This Act may be called the National Council for TeacherEducation (Amendment) Act, 2019.Education (Amendment) Act, 2019.

(2) It shall be deemed to have come into force on the 17th dayof August, 1995.

2. In the National Council for Teacher Education Act, 1993(hereinafter referred to as the principal Act), in section 14, in sub-section (1), after the proviso, the following proviso shall beinserted, namely: :- Provided further that such institutions, as may be specifiedby the Central Government by notification in the OfficialGazette, which—

(i) are funded by the Central Government or the StateGovernment or the Union territory Administration;

(ii) haveofferedacourseortraininginteachereducation on or after the appointed day till the academicyear 2017-2018; and

(ii) fulfil the conditions specified under clause () of sub-section (3) shall be deemed to have been recognised by theRegional Committee.”.

16. As such there was a conscious legislative decision taken toamend the NCTE Act retrospectively with effect from 17 August 1995by inserting in section 14, a proviso whereby institutions which areCentral or State Government funded, and had offered courses oftraining in teacher education, on or after the appointed day, would bedeemed to be recognized by the concerned Regional Committee.

17. This is a legislative dispensation. It is obvious that the petitionercannot seek to derive any capital therefrom, as there is no similarlegislative dispensation whereunder the MBA program provided bythe ICFAI, which was undertaken by the petitioner can be deemed tobe retrospectively recognized. As such, the retrospective recognitionto the teacher training courses conducted by the Central or StateGovernment funded institutions, till 2017-2018 having been granted in

terms of a legislative statutory mandate, the petitioner cannot seek toavail the benefit thereof.

18. Mr. Mann, seeks to submit that there is not distinction betweenthe position in which he finds himself and the students who werestudents of the institutions who have been granted retrospectiverecognition.

17. This submission, also, would fail for the same reason. The grantof retrospective recognition to the courses conducted by the teachertraining institutions was the consequence of parliamentary legislationwhereby the NCTE Act was amended. The petitioner cannot possiblyclaim that there should also be a legislation in his favor empoweringgrant of retrospective recognition for the course that he hasundertaken.

18. Mr.MannintercedestosubmitthattheParliamentarylegislation was initiated by the MHRD, and refers for this purpose, toa press release issued by the Press Information Bureau on 15 May2020.

19. The paragraph from the said press release to which Mr. Manndraws reference may be reproduced in extenso thus:

Press Information BureauGovernment of India Union HRD Minister announces retrospective recognition toCentral and State Government conducted Teacher EducationCourses New Delhi 15th May, 2020

Union HRD Minister Shri Ramesh Pokhriyal 'Nishank' todayannounced that MHRD has brought out two Gazette Notificationsdated 12" May 2020 to regularize retrospectively certain TeacherEducation Programmes being conducted by some Central and StateGovt Institutions. These programmes were being conductedwithout any formal recognition from National Council for TeacherEducation (NCTE). The Minister said that the decision was takenin the interest of students who were likely to suffer in this.

Background:

NCTE legally grants formal recognition to academic institutionsfor conducting any of the NCTE recognized courses meant for pre-service teacher education. It is only after qualifying any of theseNCTE recognized courses that a person becomes legally eligiblefor appointment as a school teacher in India.

It was brought to the notice of MHRD that some of the Central andState Govt institutions had inadvertently admitted students inteacher education courses which were not recognized by NCTE.This rendered invalid the qualification acquired by these studentsfor the purposes of employment as school teachers in India.

Retrospective recognition to courses:

An amendment to the NCTE Act, 1993 was initiated by MHRD toenable retrospective recognition to such courses. The amendmentwas notified on 11[th]January 2019, after being passed by bothHouses of Parliament.

Notably this amendment only allows retrospective recognition upto Academic Session 2017-2018, thereby only regularizing thequalifications acquired by students in the past. It does not proposeto leave it open for institutions to run unrecognized courses infuture and thereafter approach for ex-post facto regularization.

In all 23 institutions of the Central and State Govt have benefittedinvolving about 13000 students and around 17000 in-serviceteachers. As a result of these notifications the qualificationsacquired by affected students and in-service teachers, now standslegally validated.”

20. Every Parliamentary legislation is initiated by a Ministry or by aDepartment of Government of India. The mere fact that the MHRDhad initiated the amendment to the NCTE Act, cannot be the basis forthe petitioner to claim parity. The decision to amend the NCTE wasultimately was a decision of the legislature and not a decision of theMHRD. Legislation is an exercise undertaken by the legislature, notby the executive. The Government does not legislate; it is theParliament which legislates.

21. There being no similar legislative dispensation in favour of thepetitioner, the petitioner cannot seek, on the basis of the decision ofthe Union Legislature to amend the NCTE Act, for the considerationsset out in the aforesaid press release dated 15 May 2020, that thereshould also be a similar decision to grant retrospective recognition tothe MBA Course undertaken by him.

22. Indeed, if such a submission is to be accepted, it would meanthat every person who has undertaken a course which at any point oftime was not recognized, can seek a mandate that the UGC shouldretrospectively recognize the course.

23. As such, the grant of retrospective recognition to the teachertraining courses provided by the institutions mentioned in thenotification dated 12 May 2020 being the outcome of a legislativeexercise, was not subject to the directions issued by the MHRD videletter dated 7 October 2018.

24. Any direction to the UGC to grant retrospective recognition tothe course undertaken by the petitioner would, on the other hand,would be in the teeth of the specific prohibition contained in the letterdated 7 October 2018 issued by the MHRD against the UGC grantingretrospective or ex post facto recognition to ODL courses.

25. Moreover, the attempt of Mr. Mann to draw parity between theICFAI and the TEIs whose courses were granted retrospectiverecognition by the MHRD notification dated 12 May 2020 fails ontwo other grounds as well.

26. The first is that the courses undertaken by the said institutionsare not ODL Courses. There was, therefore, no proscription againstgrant of retrospective recognition to such courses.

27. Secondly, the retrospective recognition was granted, videNotification dated 12 May 2020, not by the UGC but by the CentralGovernment.

26. At the cost of repetition, it may be mentioned that no court candirect retrospective recognition to be granted for any course which hasbeen undertaken by any educational institution. The court can onlydirect the highest authority to consider the case for grant ofretrospective recognition. Where, as in the present case there is anexpressed proscription, in the MHRD letter dated 7 October 2018against grant of such retrospective recognition, any such direction bythis court would ex facie amount to directing the UGC to act against the mandate of the MHRD letter dated 7 October 2018. No writ courtcan pass such a direction, especially when the notification is not underchallenge.

27. For all the aforesaid reasons, this court regrets that it is not in aposition to grant the relief as prayed by the petitioner in this writpetition.

28. The writ petition is accordingly dismissed.

29. No orders as to cost.

MAY 28, 2024/K

C.HARI SHANKAR, J

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