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Gujarat High Court · body

2018 DIGILAW 1275 (GUJ)

Jay Jatinkumar Pandya v. State of Gujarat

2018-12-21

MOHINDER PAL

body2018
JUDGMENT : MOHINDER PAL, J. 1. All these petitions are taken up together having common question of law and facts. 2. By way of these petitions, petitioners have approached this Court against the action and inaction of Respondent No. 2-University in not cancelling the admission of the petitioners and not refunding the entire fees in respect of Ph.D. programme on account of non-compliance of UGC (Minimum Standards and Procedure for Awards of M.Phill/Ph.D. Degree), 2009 (herein after referred to as 2009 Regulations') and also on the account that other similarly situated students have got refund of their fees. 3. Petitioners have taken admission in Ph.D. programme of respondent-University for the session starting from 2013-14 after respondent-University published an advertisement for the same. The said advertisement gave an impression that respondent-University had necessary permissions for conducting Ph.D. programme and that University was in capacity of complying with all regulations and guidelines as mandated by University Grants Commission (UGC). Petitioners paid a sum of Rs. 1,50,350/- as fees for Ph.D. programme at regular intervals which was as per fees structure of the respondent-University. 4. On 24.10.2015, a Committee of Experts from the UGC visited the Respondent-University and after due inspection, the said Expert Committee came to conclusion that respondent-University was not following 2009 Regulations which was mandatory for running Ph.D. programme. 5. Regulations of 2009 are mandatory to be followed by University established under the Act and therefore, the degree awarded by the respondent-University will not be valid and genuine for the purposes of higher studies and employment and otherwise. After the above mentioned inspection by UGC, the petitioners have been regularly approaching the officials of Respondent-University and inquiring about validity and authenticity of the Ph.D. programme conducted by the Respondent-University and also for refund of fees amounting to Rs. 1,50,350/-. However, the respondent-University every now and then, gave false promises that the petitioners will get refund of fees in full in parity with others. 6. Apart from aforementioned refund of fees, petitioners also prayed for return of the original degrees/documents which were retained by the respondent-University at the time of admission. 7. 1,50,350/-. However, the respondent-University every now and then, gave false promises that the petitioners will get refund of fees in full in parity with others. 6. Apart from aforementioned refund of fees, petitioners also prayed for return of the original degrees/documents which were retained by the respondent-University at the time of admission. 7. Respondent No. 2-University contested this petition by filing reply wherein, it has been stated that as respondent-University being a private University which was not being managed, controlled or financed by the Government and does not fall under the purview of other Authorities as given in Article 12 of the Constitution. Further, as per clause 10 of the terms and conditions of the registration, any request for cancellation/refund has to be made in writing on month prior to the commencement of the session. The application, if made as per the prescribed time, would be decided by the Admission Committee of the respondent-University. If the applicant is aggrieved by the decision of the Admission Committee then in such a situation as per clause 10 such dispute/disagreement shall be referred to arbitrator as the arbitration clause exists in the admission form, the jurisdiction of the Court was barred. Further, it is well settled legal position that where disputed questions of facts were involved, the petition under Article 226 of the Constitution was not a proper remedy. 8. Though, it was allegations of the petitioners that respondent-University did not have requisite permission to conduct the Ph.D. programme but they never provided any proof substantiated their allegations and making of such allegations completely unfounded as well as groundless. Petitioners failed to provide appropriate reasons for requesting such cancellation and instead they have tried to attack the credibility and prestige of the University. University was having valid permission to run Ph.D. programme and there were approximately 400 students since inception of Ph.D. programme in the year 2013. The University has never promised the petitioners to refund of their fees and accordingly, their petitions being bundle of lies were liable to be dismissed. 9. University was having valid permission to run Ph.D. programme and there were approximately 400 students since inception of Ph.D. programme in the year 2013. The University has never promised the petitioners to refund of their fees and accordingly, their petitions being bundle of lies were liable to be dismissed. 9. In further affidavit of respondent-University to the affidavit-in-reply submitted by Respondent No. 3, it is stated that admission to the course of Ph.D. was initiated by the respondent-University only after all the required academic and physical infrastructure facilities were put in place by the respondent-University in terms of the rules and regulations existing as on the date of the establishment/initiation of the course:. Therefore, in view of the letter dated 19.11.2012, addressed by the respondent No. 3 to the respondent-University, there was no bar or restriction on the respondent University in initiating the admission to the course of Ph.D. The report of UGC Expert Committee was based upon the visit of the Committee held on 23rd and 24th October, 2015 i.e. shortly after the clarification dated 06.07.2015 issued by the respondent No. 3 and therefore, the deficiencies pointed out by the Committee has to be viewed keeping in mind the clarification/change in stand of the respondent No. 3 with regards to implementation of the provisions of University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degrees) Regulations, 2009 (Regulations 2009). The Regulations 2009 were in fact got amended vide the newly formulated University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degrees) Regulations 2016 (brought in force on 5th May, 2016) to give effect to and to incorporate the clarification extended by the Respondent No. 3 vide letter dated 6th July, 2015. The admission of the petitioners were initiated by the respondent-University after complying with the requirements and mandate as provided under the Regulations 2009. Perusal of the report of the UGC Experts Committee also clearly indicate that the Expert Committee though having found certain deficiencies did not observe that the admissions made to the course of Ph.D. were invalid or illegal. In such circumstances, it is clear that stand of the Respondent No. 3 suggesting that the admissions and award of degree of Ph.D. by the respondent University were not recognized/regular was on the face of it incorrect and without any legal basis. In such circumstances, it is clear that stand of the Respondent No. 3 suggesting that the admissions and award of degree of Ph.D. by the respondent University were not recognized/regular was on the face of it incorrect and without any legal basis. It is also contended that if the respondent-University was found to be illegal and without any Authority of law, Respondent No. 3 would have issued appropriate orders not only prohibiting the respondent-University from conducting such a course and also from granting degrees to students who have successfully cleared their Ph.D. course. Name of respondent-University has not been de-listed and therefore, it was clear and evident that respondent No. 3 (UGC) has not found that the respondent-University has not complied with the suggestions of the expert committee. Finally, it has been replied that approval of respondent-University was still pending and as similar to the case of respondent-University, there were numerous other Universities in whose cases also the approval status was pending and such Universities were imparting degrees, the respondent University cannot be restrained from imparting such degrees. 10. UGC in its separate reply has averred that after inclusion of the University's name in UGC list, the said University is required to submit information about academic and physical infrastructure facilities in the prescribed form within a period of 3 months from the said date of issuance of the inclusion letter. Thereafter, UGC's Expert Committee would visit the University for verifying the fulfillment of the criteria in terms of each programs, academic and physical infrastructure facilities, financial viability etc. as per the norms laid down from time to time by UGC and other statutory bodies such as AICTE, BCI, MCI, DCI, INC, NCTE, PCI, etc. as the case may be. If the expert committee during the visit finds certain discrepancies then the same would be communicated to the university concerned and the university is required to remove the said discrepancies by submitting a Compliance Report which would further be evaluated by UGC. After satisfactory compliance of discrepancies, a letter would be issued by the UGC, accepting the compliance. Further, if the UGC finds that the University has awarded first degree without complying the discrepancies, as pointed out by the Expert Committee, then the public would be informed in general through public notification. 11. After satisfactory compliance of discrepancies, a letter would be issued by the UGC, accepting the compliance. Further, if the UGC finds that the University has awarded first degree without complying the discrepancies, as pointed out by the Expert Committee, then the public would be informed in general through public notification. 11. UGC vide its letter dated 04.12.2015 has sent UGC Expert Committee Report dated 24.10.2015 and AICTE Expert Committee report to Rai University and requested it to submit the compliance in respect of observations and suggestions given by UGC Expert Committee. In reply to the said letter, Rai University, vide its letter dated 21.03.2016 received in UGC office on 12.04.2016 had submitted the 1st compliance report wherein it has informed that the university has appointed regular Ph.D. Supervisors and the existing Supervisors would act as Co-Supervisors. 12. That as per UGC, Ph.D. regulations 2009, a student has to attend the course work and satisfy other prerequisites of Ph.D. programs on regular basis by attending the university on daily basis. This would help the students to conduct proper research work by reviewing literature, discussions, with a subject experts, enhancing research by reading books, journals, data analysis using computer labs etc. Thus, it was contended by Rai University that the students were not attending university on daily basis. Further, as per letter dated 21.3.2016 of Rai University, it was found that University has not submitted compliance about the observations/suggestions of AICTE team. Therefore, UGC vide its letter dated 19.4.2016 had once again requested Rai University to submit the compliance with regard to observations of AICTE. Subsequently, third compliance report has been received by UGC office on 23.5.2017. However, on examination of the said compliance report, it was once again found that the faculty position in the departments of Mechanical Engineering, Civil Engineering, EE/EEE/EC Department, Computer Science, I.T. Department and School of Agriculture was not as per the norms of AICTE. It was for this reason UGC once again vide its letter dated 02.06.2017 has asked the Rai University to recruit faculty as per the AICTE norms and submit the compliance report. Rai University vide its letter dated 18.08.2017 has intimated UGC about the admission of students for Ph.D. course and awarding of degree along with uploading of same to inflibnet. It was for this reason UGC once again vide its letter dated 02.06.2017 has asked the Rai University to recruit faculty as per the AICTE norms and submit the compliance report. Rai University vide its letter dated 18.08.2017 has intimated UGC about the admission of students for Ph.D. course and awarding of degree along with uploading of same to inflibnet. However, as per answering respondent when the UGC Expert Committee Report dated 24.10.2015 observed that the Ph.D. courses in Rai university are irregular and had specifically recommended for not admitting the students in the Ph.D. course, then the Rai University should not have registered the Ph.D. students since inception. Further, as the Rai University in their 1st compliance letter dated 21.03.2016 have intimated that they are not registering Ph.D. students in their programs, therefore, there was no requirement for UGC to apprehend about admitting the students in Ph.D. programs. Thus, Rai University by keeping UGC in dark and informing UGC about non-admission of Ph.D. students, had admitted the students in Ph.D. course. So, it was the sole responsibility of Rai University for awarding degree for irregular Ph.D. programmes at their own risk and cost. Finally, it is pleaded that the degree awarded by Rai University for Ph.D. program was not recognized by UGC and was illegal. 13. While arguing on behalf of the petitioners, Mr. Mehul Shah, learned senior Counsel submitted that right from the date of inception, the petitioners are kept in dark. Petitioners were made to believe that the University was fully competent to impart degrees for Ph.D. programme while in fact, they were yet in the process of getting approval from UGC. He has drawn attention of this Court to various visits of the Expert Committee and the discrepancies found in programmes conducted by the University. It has been argued that University was not having adequate faculty and other infrastructural facilities and under these circumstances, some objections were raised by the Expert Committee during their visits in the year 2015-16. It has been argued that not more than 8 students could be assigned to one supervisor. However, in the case of petitioners, University has admitted around 400 students under course of Ph.D. degrees while they were not having adequate faculty leaving aside the regular one. He has drawn attention of this Court to the Regulations of 2009 of UGC. It has been argued that not more than 8 students could be assigned to one supervisor. However, in the case of petitioners, University has admitted around 400 students under course of Ph.D. degrees while they were not having adequate faculty leaving aside the regular one. He has drawn attention of this Court to the Regulations of 2009 of UGC. While as per Regulation No. 7, he has argued that the University was required to lay down and decide on annual basis, a predetermined and manageable number of M.Phil and doctoral students depending on the number of the available eligible Faculty, Supervisor. According to him, a Supervisor at any given point of time cannot undertake to guide more than 8 Ph.D. scholars and Five M.Phil scholars which was required to be decided well in advance and on the basis of such Faculty, University could have advised the number of available seats for M.Phil/Ph.D. studies. He has also referred to a letter of UGC dated 2.6.2017 addressed to Rai University according to which, the deficiencies pointed out by UGC were not complied with and under these circumstances, the degrees imparted by University were invalid and fraud with the students. The letter dated 2.6.2017 reads as under:-- F.No. 8-11/2012 (CPP-I/PU) 2 Jun, 2017 The Registrar, Rai University, Saroda, Dholka Taluka, Ahmedabad - 382260 Gujarat. Subject: Compliance submitted by the University. Sir, With reference to your letter No. RU/AHD/RO/UGC/2017/1001 dated 08.03.2017 on the subject cited above, I am directed to inform you that it has been found that the faculty in the Department of Mechanical, Civil Engineering, EE/EEE/EC, Computer Science/IT and School of Agriculture is not as per the norms of concerned Statutory Council/UGC. You are requested to recruit faculty as per the norms and submitted information in the format already provided. The University to ensure that the faculty in each Department is appointed as per the intake capacity and not as per actual students admitted. In case of the faculty appointed after the visit of the UGC, Expert Committee, a copy of offer letter/appointment letter along with joining letter in respect of the faculty member to be submitted. Further, the University has not yet submitted compliance in respect of the observations/suggestion given by the AICTE. In case of the faculty appointed after the visit of the UGC, Expert Committee, a copy of offer letter/appointment letter along with joining letter in respect of the faculty member to be submitted. Further, the University has not yet submitted compliance in respect of the observations/suggestion given by the AICTE. You are again requested to submit point-wise compliance (hard copy and soft copy) in respect of the observations/suggestions given by the AICTE it is letter dated 23.11.2015 (Copy enclosed) along with supporting documents. Yours faithfully, (Rundha Mahajan) Under Secretary 14. While referring to further affidavit of respondent No. 2-University it has been argued that the University has started M-Phil/Ph.D. programmes without any permission from the Competent Authority and merely because other University and Institutions are running in this fashion cannot be a ground to allow the respondent No. 2-University to play with the career of the students. 15. On the other hand, appearing on behalf of respondent No. 2-University, Mr. Shalin Mehta, learned senior Counsel has controverted these arguments and submitted that Ph.D. course initiated by the respondent-University only after all required physical and infrastructural facilities were put in place by the University. He has referred to the letter dated 19.11.2012 addressed by the UGC to the University wherein, there was no bar or restriction on respondent-University in initiating the admission to Ph.D. Courses. He has argued that the discrepancies pointed out by the Expert Committee were rectified and thereafter, intimation has been sent to the UGC for re-inspection of the premises. It has been argued that as the University was never restrained from admitting the students, the degrees imparted by the University were valid and legal. It has been argued that fresh admissions of students was not misleading and baseless as the course conducted and consequent degrees awarded by respondent-University was found to be in order, valid and legal. According to him, no order or communication has ever been disputed by the respondent No. 3-UGC prohibiting the respondent-University from conducting such a course. According to him, if the University fails to comply with the deficiencies as pointed out by the Expert Committee, then, as per Section 12B of the Act, the grant distributed by respondent No. 3 can be stooped and University can be de-listed from the list maintained by the respondent No. 3. According to him, if the University fails to comply with the deficiencies as pointed out by the Expert Committee, then, as per Section 12B of the Act, the grant distributed by respondent No. 3 can be stooped and University can be de-listed from the list maintained by the respondent No. 3. In the present case, name of respondent-University has never been de-listed and therefore, it was clear and evident that respondent No. 3 has not found respondent-University to be incompetent in admitting the students. It has been argued that there are number of other Universities in whose cases approval of studies was pending. However, they were functioning and imparting education to the students. Finally, it has been argued that under such circumstances, it was clear that even the course conducted by respondent-University cannot be said to be invalid and illegal and the refund of fees applied by the students was liable to be rejected. 16. This Court has considered the submissions made by both the sides. 17. Main prayer of the petitioners is for the refund of fees as well as return of the original documents retained by the respondent No. 2-University at the time of granting of admission in Ph.D. course. They have also prayed for issuance of migration certificates. 18. During the pendency of the petitions, respondent-University is stated to have returned the original documents retained by it to the petitioners. Migration certificates are also issued. However, dispute remains regarding refund of the fees charged by the University at the time of admission and during the continuation of the course. 19. It is stand of the petitioners that Rai University was not competent to admit the students for Ph.D. programme in the session starting from 2013-14 as it was not satisfying the required standards of UGC Regulations, 2009. 20. On the other hand, it is stand of the respondent-University that the deficiencies pointed out by the Expert Committee were complied with and the degrees imparted by the University were valid and legal and under these circumstances, University was not required to refund the fees paid by the students. 21. In the written statement, respondent-University has disputed jurisdiction of Court as Arbitration clause was there in the forms filled up by the students. However, no such arguments have been advanced to substantiate this ground. 22. UGC sent its Expert Committee to assess the performance of the University. 21. In the written statement, respondent-University has disputed jurisdiction of Court as Arbitration clause was there in the forms filled up by the students. However, no such arguments have been advanced to substantiate this ground. 22. UGC sent its Expert Committee to assess the performance of the University. Expert Committee visited the Respondent No. 2-University on 23-24/October, 2015. This committee found that the due process as per UGC norms was not being followed in most of the cases like infrastructure facilities of the University. There was no research environment in the University. This Committee recommended that the University should not register Ph.D. students in absence of qualified Faculty and Supervisor. Required Academic and Physical Infrastructure facilities be created for carrying out research work as the existing Ph.D. programme was irregular which requires to be reviewed in light of the UGC regulations. 23. It appears that after the visit of UGC Experts Team constituted by AICTE visited the premises of Respondent No. 2-University and submitted its recommendation to UGC on 27th November, 2015. In their report, it has been found that there was gross shortfall in faculty at all the levels i.e. Professor, Associate Professor and Assistant Professor. Specific area for technical courses and administrative work has not been earmarked/identified as per AICTE norms. There is gross shortfall in the title of books, volume of books and journals/e-journals in the library. Needs academic and good governance parameters in the University. Finally, it was observed and recommended that recognition should not be granted at this stage to Rai University. 24. In response to the aforementioned deficiencies, University submitted its reply which is available at page No. 198 wherein, it was pointed out that deficiencies pointed out by the Committee will be complied with. It was further specifically replied that we have hired and in process of hiring qualified faculties to guide Ph.D. students. Further, as per recommendations of UGC Inspection Committee currently we were not registering Ph.D. students. Current Ph.D. students were also there and simultaneously the process of regular Ph.D. supervisor has been started and have recruited some Ph.D. Professors and it was expected by the end of July, 2016, will be having all required number of Ph.D. Supervisor in the University. 25. It will be relevant to note that the respondent-University has admitted about 400 students for Ph.D. programme. 25. It will be relevant to note that the respondent-University has admitted about 400 students for Ph.D. programme. As per Rule 51, there would not be more than 8 Ph.D. students and 5 M.Phil students could study under one Supervisor. Supervisor was required to be in permanent employment of the University. As is clear from the stand of the respondent-University even in the year 2016, they were not having requisite number of Supervisors and were yet in the process of recruiting permanent faculty. This could only be done after creation of required academic and physical infrastructure other facilities including Library, Laboratory and appointment of teaching and supporting staff as per norms and standards laid down by UGC and statutory council concerned. The UGC Expert Committee would visit the University within 3 months from the receipt of the information for spot assessment of infrastructure and other facilities available with the University, thereafter, report be prepared and sent it within 2 weeks. The University may respond to the report within a period of 2 weeks thereafter. After receipt of compliance report from the University, if any, were required to be placed before the Commission for consideration. After approval of the commission, an approval letter is issued by the UGC to an effect that the University fulfills the criteria in terms of program, academic and physical infrastructure facilities, financial viability etc. as per the norms laid down from time to time by UGC and there statutory bodies. If it is found that private university has, even if getting an opportunity to do so, failed to comply with the provisions of UGC Regulations, pointed out by the UGC Expert Committee, Commission may pass an order prohibiting the University for offering any course for awarding degree or post degree/diploma as the case may be till the deficiencies is rectified. 26. It could be seen that respondent No. 2 University has been restrained from various actions. That Expert Committee in number of inspection reports have found fault with the infrastructure facilities available to the students for Ph.D. courses. The University has failed to remove the deficiencies pointed out by the Expert Committee. The University was restrained to admit the students and impart the degrees. However, University thought it fit to continue with courses despite objections having been raised from time to time by Expert Committee of UGC. Learned senior Counsel for the respondent-University, Mr. The University has failed to remove the deficiencies pointed out by the Expert Committee. The University was restrained to admit the students and impart the degrees. However, University thought it fit to continue with courses despite objections having been raised from time to time by Expert Committee of UGC. Learned senior Counsel for the respondent-University, Mr. Shalin Mehta, has laid emphasis on the point that at no point of time, the University has been restrained from admitting the students and has been prohibited and it is never seen in the website being a barred university. 27. This Court has considered the aforementioned contentions of Mr. Shalin Mehta, learned senior Counsel. It could be seen that on various occasions, UGC has specifically pointed out regarding deficiencies in the process of imparting training by the respondent - University in its expert report. The experts have specifically mentioned that degrees imparted by the University were not valid and were illegal. When there are specific rules according to which one Supervisor can teach 8 or less than 8 students for Ph.D. programme then how 8 or 10 supervisors in the University can impart the Ph.D. degree to 400 students. Still further, till 2016, the respondent-University was in process of recruiting permanent Supervisor meaning thereby, Supervisor imparting education to Ph.D. students were part time employees of the University. 28. Learned Counsel for the petitioners has referred to various judgments according to which University imparting education and committing fraud with future of students has been visited with exemplary punishment. However, reference is made to the following decisions relied upon by learned Counsel for the petitioners:- (1) In the case of the Chairman, Railway Board and others v. Mrs. Chandrima Das & others reported in 2000 (2) SCC 465 ; (2) In the case of Dr. Janet Jeyapaul v. SRM University and others reported in AIR 2016 SC 73 ; (3) In the case of Abdul Baqui v. The State of Maharashtra and others reported in 2018 (3) Bom CR 620; (4) In the case of Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others reported in AIR 2016 SC 2294 ; (5) In the case of Kalyani Mathivanan v. K.V. Jeyaraj and others reported in (2015) 6 SCC 363 . 29. Exemplary costs have been imposed by the Supreme Court in cases where fraud has been committed with the students. 29. Exemplary costs have been imposed by the Supreme Court in cases where fraud has been committed with the students. However, taking a lenient view, this Court restrains itself from imposing exemplary cost upon the University. At the same time, UGC is also required to keep a strict vigil on such institutions as it appears that number of institutions are running courses without having proper approval of UGC and are admitting the students without any proper infrastructure and sanction to admit students for such courses. 30. In view of the afore-going discussions, all these petitions are 2 allowed. Respondent No. 2-University is ordered to refund the total fees paid by the petitioners along with interest at the rate of 9% per annum from the date such fees were paid by the students within a period of 3 (three) weeks from the date of pronouncement of this judgment. The Migration Certificate and other original documents, if not returned, the same shall be returned within a period of 3 weeks from today. A cost of Rs. 10,000/- each is further awarded to all the petitioners in all the petitions. Rule made absolute accordingly. 31. In view of the order passed in main petitions, these civil applications do not survive and same are disposed of accordingly.