High Court

Legal Reasoning

Writ Petition No.13373/2024:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.13373 OF 2024Shri Datta Mahila Mahavidyalay & anr.… PETITIONERVERSUSYashwantrao Chavan MaharashtraOpen University & anr.… RESPONDENTS.......Mr. Shambhuraje V. Deshmukh, Advocate for PetitionersMr. B.L. Sagar Killarikar, Advocate for Respondent No.1 Mr. Suresh Mundhe, Standing Counsel for R.No.2....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving order : 6th August, 2025Date of pronouncing order : 6th October, 2025ORDER (PER : R.G. AVACHAT, J.) :Heard. This petition, under Article 226 of theConstitution of India, has been filed for the following mainrelief:(B)By issuing writ of mandamus or any other appropriate writ, Writ Petition No.13373/2024:: 2 ::order or directions in the like nature, the impugnedcommunication dated 26/10/2024 issued by the respondentNo.1 and the 3rd proviso to clause 4(B)(ii) to the extent ofputting condition of “7 years” of offering same programmein conventional mode may kindly be quashed and set asideand the proposal of the petitioner for continuation ofapproval of open and distance education study center forB.Sc. Degree course may kindly be directed to be approvedand confirmed.2.The petitioners are the Colleges run by Shri DattaShikshan Prasarak Mandal, Votala. The respondent No.1 is anOpen University. It offers distance education programmes.The respondent No.2 is the University Grants Commission, astatutory body.3.The respondent No.1 had, in 2020, granted thepetitioners permission to run distance education centre forgraduation in Science stream. It was a permission for a periodof three years. Even for the year 2023-2024, the respondentNo.1 in fact granted permission to run such distance educationcentre. It abruptly, by issuing the impugned communication,called upon the petitioners to discontinue the said educationcentre. It mainly relied on provisions of Section 4(B)(ii) of theUniversity Grants Commission (Open and Distance Learning Writ Petition No.13373/2024:: 3 ::Programmes and Online Programmes) Regulations, 2020 (forshort the Regulations, 2020). The petitioners are, therefore,before us.4.Learned Advocate for the petitioners would submitthat, the proviso to a statutory provision does not have a scopebeyond the main provision to which it is a proviso. He reliedon certain principles of interpretation of statute in this regard.Our attention was also drawn to the first proviso to the veryprovision which suggests that the main provision has noapplication to the Open Universities. The learned Advocatemeant to say that, the Open Universities have every right torun distance education centre for Science stream either on itsown or through its affiliated higher educational institutions. Hewould further submit that, by abruptly discontinuing the centre,the students from the nearby vicinity have been deprived oftheir right to education. Such students were required to go to along distance educational institutes. The provision providing 7years standing in conducting such educational programmeunder conventional mode is, therefore, unreasonable andliable to be held unconstitutional. He, therefore, urged for Writ Petition No.13373/2024:: 4 ::allowing the Writ Petition.5.The learned Advocate for respondent No.1 wouldsubmit that, the petitioners have an alternative efficaciousremedy. They be, therefore, directed to avail the same. Onthe merits of the matter, the learned Advocate would submitthat, the learned Advocate for the petitioners has made self-inconsistent submissions.6.While the vires of the provisions is challenged, thesame indicates the petitioners to have admitted the provisionto have application to the Open Universities. The petitioners,therefore, could not be heard to say the provision to have noapplication at all. On the ground of challenge to the validity ofthe provision, the students, at whose behest the provision issought to be held unreasonable, are not before this Court. Theeducational institute cannot take a cause of students’ fraternityin general. He, therefore, urged for dismissal of the WritPetition.7.We have considered the submissions advanced. Writ Petition No.13373/2024:: 5 ::Perused the documents on record. Learned Advocate for thepetitioners, as usual, was candid enough to submit that theDivision Bench of this Court, in case of Symbiosis OpenEducation Society and Symbiosis Skills and ProfessionalUniversity Through its Principal Director & anr. Vs.University Grants Commission & ors. (2024 SCC OnLineBom 1954), has turned down the challenge to the veryprovision on the ground of its constitutional validity. He wouldfurther submits that, the Special Leave Petition preferredagainst the said decision was dismissed in limine.8.Admittedly, the respondent No.1 Open Universityhad granted the petitioners permission to run distance learningcentre for Science stream. The petitioners even run the saidcentre for little over three years. The respondent No.1,however, relying on the provisions of Section 4(B) of theRegulations of 2020, recalled the provision. It would,therefore, be in the fitness of things to first refer to the relevantprovisions of the Regulations, 2020. Writ Petition No.13373/2024:: 6 ::1. Short title, application and commencement.─……………………(2) These regulations lay down the minimumstandards of instruction for the grant of degrees at theundergraduate and post graduate levels and grant ofpost graduate diploma, through Open and DistanceLearning mode and Online mode and shall be inaddition to and not in derogation of any otherregulations, Notifications, Guidelines or Instructionsissued by the Commission.(3) These regulations shall apply to a Universityreferred to under clause (f) of section 2 of theUniversity Grants Commission Act, 1956 (3 of 1956),an Institution Deemed to be University under section 3of the said Act:Provided that the University Grants Commission may,by order, exempt a Higher Educational Institution orHigher Educational Institutions from the application ofthese regulations.2.Definitions:- In these regulations, unless thecontext otherwise requires :-. . . . . . . . . . .(f) Conventional mode‖ means a mode of providinglearning opportunities through face to face interactionbetween the teacher and learner in regular class roomenvironment but does not exclude supplementaryinstructions if any for the learner through use ofonline;. . . . . . . . . . .(m) Higher Education‖ means such educationimparted by conventional mode or through open anddistance learning mode or through online mode Writ Petition No.13373/2024:: 7 ::conducting regular classes or through Open andDistance Learning mode or through Online mode,beyond twelve years of schooling leading to the awardof a Degree at undergraduate or postgraduate level orCertificate or Diploma or Postgraduate Diploma; (n)―Higher Educational Institution‖ means a universityunder clause (f) of section 2 and an Institution Deemedto be a University under section 3, of the UniversityGrants Commission Act, 1956, which is offeringprogrammes through conventional mode and/orthrough Open and Distance Learning mode and/orthrough Online mode, in the field of higher educationor research therein;. . . . . . . . . . .(w) Open University‖ means a Higher EducationalInstitution which imparts education only through Openand Distance learning mode and/or Online mode usingvariety of media including print, electronic, online,information and communication technologyeducational aids including Open EducationalResources (OERs) or Massive Open Online Courses(MOOCs) etc. and is not having any provision foroffering higher education in conventional mode in itsAct or Memorandum of Association or other statutorydocuments governing the Higher EducationalInstitution;………………4. Requirements for Submission of Proposals.─(B) Provisions for Open and Distance LearningMode: (i) The Higher Educational Institution shall adhereto the policy of territorial jurisdiction as specified inAnnexure-III; (ii) A Higher Educational Institution shall be Writ Petition No.13373/2024:: 8 ::eligible to offer only those degree programmes atundergraduate and postgraduate levels and postgraduate diploma programmes, which it has alreadybeen offering in conventional mode of classroomteaching and from which at least one batch has passedout: Provided that this sub-clause shall not beapplicable to Open Universities: Provided further thatScience based programmes, which require hands-onexperience, experimental setup, shall be offered onlyby the Higher Educational Institutions having NAACscore of 3.26 and above or by the Open universities orby the Higher Educational Institutions having rank intop-100 in University category of NationalInstitutional Ranking Framework (NIRF), at leasttwice in three preceding cycles: Provided also that theScience based programmes shall be offered from theHead Quarters and/or only from such Learner SupportCentres which are offering same programme underconventional mode at least for seven years.…………...9.True, the proviso indicates that sub-clause (ii) is notapplicable to Open Universities. The said proviso is, however,an exception to the main provision (i) and (ii) above. The nextproviso is so eloquent to state that Science based programmesshall be offered only by higher educational institutes NAAC3.26 and above by Open Universities or by the highereducational institution. The provision, therefore, could not beread to observe that this provision of sub-clause (b) has no Writ Petition No.13373/2024:: 9 ::application at all to the Open Universities. Moreover, when thepetitioners challenged the constitutional validity of the saidproviso, it impliedly admits the proviso to have application toOpen Universities. The said proviso is alleged to be ultra vireson account of the students from the vicinity to have beendeprived of the facility which was available to them on accountof the respondent No.1 to have granted the petitionerspermission to run distance educational centre for Sciencestream. Admittedly, none of the students are before this Court.The averments in the petition itself indicate that no sooner theorder impugned herein was passed, the students affiliated tothe petitioners have joined the other nearby educationalinstitute. By no stretch of imagination, the proviso could,therefore, be held to be unreasonable. In our view, therefore,the challenge thereto fails. The Writ Petition, therefore,deserves to be dismissed. The same is dismissed. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) FMPathan/-