In W.P No. 9903 of 2010:

For petitioner: Harmeet Ruprah

For respondent/University: Purushendra Kaurav

For State: B.P Pandey, Dy. Government Advocate

In W.P No. 9656 of 2010:

For petitioner: Manoj Chandurkar

For respondent/University: Purushendra Kaurav

For State: B.P Pandey, Dy. Government Advocate

In W.P No. 12796 and 18229 of 2010:

For petitioner: Anubhav Jain

For respondent/University: Purushendra Kaurav

For State: B.P Pandey, Dy. Government Advocate

List of cases referred: 1. Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420 (Paras 10, 11, 13, 15, 16, 18, 19, 22) 2. Uttaranchal Education Trade and Technology Pvt. Ltd., Dehradun v. State of M.P, 2007(4) MPLJ 54 (Paras 10, 11, 15, 16, 18, 19, 22)

The facts and issues involved in these four petitions being identical, they are heard and decided concomitantly.

2. All the aforesaid petitions have been filed by the persons who have applied for being appointed as Guest Lecturers in various colleges, assailing the orders of the same date i.e 14-7-2010 passed by Joint Director, Higher Education, Jabalpur, whereby the said authority, on the basis of instructions given by the Commissioner, Higher Education, Bhopal, has ordered that M.Phil/Ph.D certificates produced by the applicants obtained through the Distance Education System/Course should not be considered while considering their candidature for appointment as Guest Lecturers. The petitioners have also challenged order dated 7-8-2010 issued by the Commissioner, Higher Education, Bhopal whereby the Commissioner has directed all Joint Directors and Principals to take note of Regulation 3 of the Regulations of 2009 issued by the University Grants Commission which have come into force from the date of their publication in the Gazette of India on 17-7-2009, wherein it has been stated that M.Phil and Ph.D degrees/marksheets should not be granted through Distance Education System and accordingly appropriate steps in the selection of Guest Lecturers be taken by the concerned Joint Directors and Principals.

3. The petitioner Smt. Rashmi Rajak in W. P No. 9903/2010, after having completed her Post Graduation in the year 1999 from Dr. Hari Singh Gaur University, Sagar, is said to have obtained a marksheet of M.Phil in English Literature from Madurai Kamraj University, Chennai and has annexed a certificate of completion of course dated 15-9-2008, Annexure P-6, to that effect as well as a marksheet dated 30-5-2008, Annexure P-5 along with her petition.

4. The petitioner Roopam Khare in W. P No. 9656/2010, has stated that he has completed and obtained M.Phil degree from Vinayaka Missions University, Salem and to establish the same he has filed a provisional certificate issued on 3- 7-2010, Annexure P-2 along with his petition.

5. The petitioner Ms. Madhu Guru in W. P No. 12796/2010, has stated that she has completed M.Phil Degree in English from Vinayaka Missions University, Salem and in support thereof has filed two marksheets of M.Phil, Part-I and Part-II issued in February, 2010 and June, 2010 respectively.

6. The petitioner Smt. Prachi Shrivastava in W. P No. 18229/2010, has stated that she has obtained M.Phil Degree in Home Science from Vinayaka Missions University, Salem and in support of the aforesaid contention has filed marksheets of M.Phil, Part-I and Part-II issued in March, 2009 and August, 2009 respectively.

7. On the strength of the aforesaid M.Phil marksheets it is stated that as the petitioners have a valid M.Phil marksheet issued by the Madurai Kamraj University, Chennai and the Vinayaka Missions University, Salem, therefore, the impugned orders issued by the respondents directing the concerned authority to ignore the aforesaid valid marksheet of M.Phil, obtained by the petitioners, while considering their cases for appointment as Guest Lecturer, is contrary to law and deserves to be set aside.

8. The learned counsel for the petitioners have specifically stated that the new Regulations issued by the University Grants Commission which prohibits granting of M.Phil and Ph.D Degrees through Distance Education Courses came into force w.e.f 17-7-2009 and, therefore, the said Regulations would have no applicability to the petitioners’ cases as they have obtained M.Phil marksheets prior to the said date or in any case had commenced the course prior to the coming into force the aforesaid Regulations. The petitioners, in support of the aforesaid contention, have relied upon the decision rendered by the Gwalior Bench of this Court in W. P No. 3290/2012 decided on 29-8-2012, wherein this Court has held that the aforesaid Regulations would not have any retrospective applicability and, therefore, persons who have obtained M.Phil Degree prior to coming into force the aforesaid Regulations would not be affected by the same. It is submitted that the cases of the petitioners being identical, the petitions filed by them be allowed.

9. The learned counsel for the respondent/State as well as the learned counsel for the University have vehemently opposed the claim of the petitioners. It is submitted that the issue involved in the present petition does not simply relate to retrospective applicability of the Regulations but also relates to and in fact involves the issue of validity of the M.Phil marksheets obtained by the petitioners from Universities situated outside Madhya Pradesh through Distance Education which cannot be granted any recognition in the State of M.P for the purposes of employment or otherwise. The respondents, by filing a detailed return in W. P No. 9656/2010(S) have stated that the grant of degree/marksheet of M.Phil and Ph.D are governed by the provisions of the University Grants Commission Act, 1956. It is stated that a degree/marksheet may be conferred or granted by any University only with the previous approval of the Central Government after it is specified in that behalf by the Commission by issuing a notification in the Official Gazette. It is stated that the Madurai Kamraj University, Chennai or the Vinayaka Missions University, Salem have not been authorized or recognized for granting a degree/marksheet of M.Phil/Ph.D through Distance Education by the University Grants Commission by issuing a notification in that behalf.

10. It has further been stated that the grant of M.Phil degree through Distance Education is governed by the Indira Gandhi National Open University Act, 1985 (hereinafter referred to as ‘the IGNOU Act’) whereunder a Distance Education Council has been constituted and has been empowered to authorize or recognize Distance Education Degrees issued by any University or College in the country. It is submitted that the Distance Education Council, constituted under the provisions of the IGNOU Act, has not notified or permitted the Madurai Kamraj University, Chennai or the Vinayaka Missions University, Salem to issue Degrees/marksheets of M.Phil/Ph.D through Distance Education to students outside the State of Tamil Nadu. The respondents have also brought to the notice of this Court the decision of the Supreme Court rendered in the case of Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420 and the Division Bench decision of this Court in the case of Uttaranchal Education, Trade and Technology Pvt. Ltd., Dehradun v. State of M.P, 2007(4) MPLJ 54, to contend that such degrees are in fact not valid as the concerned University has no authority or power to issue degrees/marksheets beyond the limits of their jurisdiction or in any case beyond the limit of the State concerned.

11. The respondents have also stated that the University Grants Commission has framed the UGC (Minimum Standards and Procedure for awards of M.Phil/Ph.D Degree) Regulation, 2009 (hereinafter referred to as the ‘UGC Regulation’) which have been published in the Gazette notification on 17- 7-2009 and have come into force from that date which provide that M.Phil and Ph.D Degrees cannot be conferred through Distance Education mode. It is submitted that in the light of the aforesaid provisions of the UGC Regulation the IGNOU Act; the decision of the Supreme Court in the case of Prof. Yashpal (supra) and the decision rendered by the Division Bench of this Court in the case of Uttaranchal Education Trade and Technology (supra), the M.Phil/Ph.D marksheets of the petitioners cannot be given any recognition while considering their claim for appointment on the post of Guest Lecturer in the State of M.P

12. I have heard the learned counsel for the parties at length. From a perusal of the record it is an undisputed fact that the petitioners have obtained M.Phil marksheets, and not degrees, from Madurai Kamraj University, Chennai and Vinayaka Missions University, Salem after undertaking and enrolling themselves for M.Phil courses at the study centres of this University situated at Bhopal, Gwalior and other places in the State of M.P on the strength of which they seek consideration of their claim for appointment as Guest Lecturers.

13. To properly appreciate the issue involved in the present cases it would be appropriate to first take into consideration the decision of the Supreme Court rendered in the case of Prof. Yashpal (supra).

14. In the said decision provisions of the Chhattisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Sanshodhan Adhiniyam, 2004 were held to be ultra vires the constitution on various grounds. It was also held that the impugned Act, which provided for having off-campus centres of the University outside the State was beyond the legislative competence of the State of Chhattisgarh Legislature and was in violation of Article 245 of the Constitution of India. It was held that a University established by a State enactment would have jurisdiction only within the area specified in the Act or atbest only within the territorial limit of the State concerned and not beyond the same, in the following terms:—

“60. Dr. Dhavan has also drawn the attention of the Court to certain other provisions of the Act which have effect outside the State of Chhattisgarh and thereby give the State enactment an extraterritorial operation. Section 2(f) of the amended Act defines “off-campus centre” which means a centre of the university established by it outside the main campus (within or outside the State) operated and maintained as its constituent unit having the university's complement of facilities, faculty and staff. Section 2(g) defines “off-shore campus” and it means a campus of the university established by it outside the country, operated and maintained as its constituent unit, having the university's complement of facilities, faculty and staff. Section 3(7) says that the object of the university shall be to establish the main campus in Chhattisgarh and to have study centres at different places in India and other countries. In view of Article 245(1) of the Constitution, Parliament alone is competent to make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. The impugned Act which specifically makes a provision enabling a university to have an off-campus centre outside the State is clearly beyond the legislative competence of the Chhattisgarh Legislature.”

15. In the case of Uttaranchal Education Trade and Technology (supra) the issue as to the validity of the centres established by the M.P Bhoj Open University under the provisions of the M.P Bhoj (Open) University Adhiniyam, 1991 in the State of Uttaranchal and Punjab came up for consideration before the Division Bench of this Court and this Court, by relying upon the decision rendered in the case of Prof. Yashpal (supra), has held that the Bhoj Open University established in the State of M.P had jurisdiction extending only to the whole of M.P and it could not establish or have study centres outside the territorial limit of the State of M.P

16. Like the Supreme Court this Court, while laying down the aforesaid law, took into consideration the provisions of the UGC Regulations and the provisions of the IGNOU Act, specifically sections 2, 4 and 5 of IGNOU Act. In the said decision this Court also took into consideration the circular issued by the Distance Education Council established under the IGNOU Act dated 26-11-2005 which specifically provided for obtaining necessary approval from the Distance

Education Council prior to establishing an Open University and the directions issued by the Distance Education Council by its letter dated 3-1-2006 and 5-1-2006 issued in the light of and pursuant to the judgment of the Supreme Court rendered in the case of Prof. Yashpal (supra), wherein it was clearly provided that the State Open University cannot set up study centres outside their respective States and their jurisdiction would only be within the State. The said letter has also reiterated the directions published in the Gazette Notification dated 1-3-2005 making it mandatory for all the State Open Universities and Distance Education institutions to seek prior approval of the Distance Education Council for starting any course/programme. Relevant portion of the judgment in the case of Uttaranchal Education Trade and Technology (supra) as contained in paras 7, 10, 12, 26 and 27 is to the following effect (underlining by this Court):

“7. It is further urged that on a scrutiny of Annexure-P/6 it transpires that the impugned communication dated 3-7-2006 has emanated from the University on the directives issued by the Distance Education Council of the Indira Gandhi National Open University [for short ‘the IGNOU’]. A reference has been made to various provisions of the Indira Gandhi Open University Act, 1985. It is contended that Distance Education Council is one of the authorities of the University and was set up in the year 1991 and after its formation the distance Education Council attempted to enlarge the jurisdiction by seeking to control the distance education programme being run by other States/Private Universities. The Distance Education Council issued a circular in the year 2004 as per Annexure- P/7 notifying that other universities were required to obtain prior approval from the Distance Education Council of the IGNOU before commencing a course/programme failing which any degree/diploma/certificate awarded would not be recognised for higher education or employment in the Government services. Subsequently the said Council published a circular dated 26-11-2005 notifying that it was incumbent on all the universities/institutions to seek approval of the Distance Education Council. A copy of the circular dated 26-11-2005 would reveal that the said universities were intimated that they could not be permitted to operate beyond the territorial jurisdiction of the State.

10. A counter-affidavit has been filed by the respondent No. 2 contending, inter alia, that the University had agreed to confer the benefit of recognition to the petitioner as an associated study centre for the courses mentioned in the Schedule I of the agreement between the University and the petitioner. The petitioner was permitted for providing education on the distance learning course in respect of all the courses. The Distance Education Council vide letter dated 3-1-2006 and 5-1-2006 had issued some directions in the light of the judgment of the Supreme Court that the State Open Universities cannot set up study centres out of their respective States and their jurisdiction is within the State and hence, the State Open Universities should not establish study centres outside their territorial jurisdiction. It is also mentioned in the above communication that as per Govt, of India Gazette Notification dated 1-3-1995 it was mandatory for all the State Open Universities and distance education institutions to seek prior approval from the Distance Education Council for establishment of study centres outside the State. The matter was referred to the Board of Management of the respondent No. 2 and the Board of Management in its meeting on 3-6-2006 took the decision that all study centres established/recognised by the University out of M.P be directed that they shall not invite fresh application for new admission in any course for the academic year 2006–2007. However, admissions given in the earlier session would continue in accordance with the memorandum of understanding till duration of completion of respective course. It is put forth that duration of B.Sc(Biology), B.Sc (IT), B.Sc (Maths), B.Com, B.A, MBA, BBA, BCA courses are three years and the admission given in the earlier session 2005–2006 in the above courses will be completed in the year 2008 and, therefore, no admission would be given to the fresh students. The respondent No. 2 had issued directions well in time to all the study centres situated outside the State of M.P and by the said correspondence interested students have taken admission in the earlier session have been protected till completion of their respective courses. Emphasis has been laid in the communication made by the IGNOU as per its letter dated 3-1-2006 and 5-1-2006 which have been brought on record.

12. It is further put forth that the respondent No. 5 has framed guidelines viz. DEC-establishment and operation of open and distance learning institutions in India. One of the guidelines provided under the Statute is that a distance education institution should be located within the territorial limits of the university to which it is affiliated. Reference has been made to paragraph 4.12 of the guidelines which deals with ‘study centre’. It is set forth that establishment of distance education centre outside the geographical limits of the parent university is not permissible. Reference has been made to the decisions rendered in Prof. Yashpal v. State of Chhattisgarh and Rai University v. State of Chhattisgarh. Relying on the said citations it is manifest that the only recourse open to the petitioner is to seek affiliation with any of the university which has jurisdiction over the area where the petitioners-institutions are functioning. It is contended that the respondent No. 2, University has been established under the Madhya Pradesh Bhoj (Open) University Adhiniyam, 1991 for the purpose of encouraging open universities and distance education systems within the State and, therefore, the said University falls within the framework of section 4 of the IGNOU Act for the purposes of co-ordination of distance education systems and accordingly regulated by answering respondents and further in view of the Apex Court's judgments the said University cannot have any off-campus centre outside the territorial jurisdiction of the State of Madhya Pradesh under its auspices.

26. It is submitted by the learned Counsel for the Study Centre that the Bhoj (Open) University has the authority to open study centres as it has the statutory obligation to promote the distance education system. It is also urged by them that the Distance Education Council of IGNOU has no authority to direct the University not to have study centres outside the State. As has been stated hereinabove in section 2 of the IGNOU Act. Sub-section (2) of section 1 clearly lays down that the 1991 Adhiniyam extends the whole of Madhya Pradesh whereas provision in the IGNOU Act provides to extend the distance education to whole of India. Thus as per the said Statute it can have the study centres throughout India but the Bhoj (Open) University cannot have study centres within the whole of the State. The quality of Distance Education system can be controlled. Mode of Distance Education system may be practiced by way of telecast, broadcast and correspondence courses but that does not mean a regional centre or a study centre can be established beyond the territorial jurisdiction of the State as the Act extends only to whole of Madhya Pradesh. Section 3 provides that the headquarters of the University shall be at Bhopal or it may establish or maintain Regional Centres and Study Centres at such places as it may deem fit, but such places have to have the nexus and the connection with the provision of the Statute inasmuch as it cannot go beyond the territorial limits of the State of Madhya Pradesh. At this juncture we may refer with profit that the State Legislature has enacted the Madhya Pradesh Vishwavidyalay Adhiniyam, 1973. Section 7 of the said 1973 Adhiniyam deals with the territorial limits of the State of Madhya Pradesh. The said section stipulates that the University under the said Act shall not extend beyond the limits of territorial jurisdiction specified in Second Schedule from time to time. The first proviso to the said section lays postulate that the State Government may authorise the University to associate or to admit to any of its privileges to colleges situated within the State outside the aforesaid limits in accordance with the provision of the Act and the Statutes made thereunder.

27. We have referred to the same only to show that the State Legislature has created eight universities under the Second Schedule and has stipulated the territorial jurisdiction apart from the headquarters. According to the 1991 Act the Bhoj (Open) University being an Open University has the jurisdiction to extend to the whole of the Madhya Pradesh. It is to be understood in that context because a University in the State cannot have study centres outside the territorial jurisdiction of it.”

17. In the instant case, it is relevant to take into consideration the document Annexure P-9, filed by the petitioner in W.P No. 9903/2010, in the light of the law laid down in the above discussions, which relates to a decision taken by the Government, Higher Education Department, Chennai, dated 29-8-2006. By the said decision the Government of Tamil Nadu, after careful consideration, has directed all the Universities within the State of Tamil Nadu that M.Phil and Ph.D Courses should not be offered through Distance Education from the academic year 2007–08, in spite of which the petitioners have been awarded M.Phil and Ph.D marksheets by the Madurai Kamraj University, Chennai and the Vinayaka Missions University, Salem in 2008, 2009 and 2010.

18. That apart, after the circular issued by the Distance Education Council in 2004 (referred to in para-7 of the judgment in the case of Uttaranchal Education Trade and Technology (supra)) and in any case after the decision of the Supreme Court rendered in the case of Prof. Yashpal (supra) in the year 2005 and the notifications and guidelines issued by the Distance Education Council dated 3-1-2006 and 5-1-2006 issued pursuant thereto, which have been considered in detail by this Court in the case of Uttaranchal Education Trade and Technology (supra), it is apparent that no Open University could have been established or continued without having obtained approval of the Distance Education Council and that no Distance Education Centre could have been established by an Open University outside the area of its operation or beyond the territorial limit of the State in which it is situated and, therefore, the admission of the petitioners in M.Phil/Ph.D and the marksheets issued to them by the Madurai Kamraj University, Chennai and the Vinayaka Missions University, Salem through Distance Education Centres situated in the State of M.P after the aforesaid dates are clearly in violation of the law laid down by the Supreme Court in the case of Prof. Yashpal (supra); the provisions of the UGC Regulations and the IGNOU Act and the regulations and notifications issued by the Distance Education Council constituted under the provisions of the IGNOU Act and the decision of this Court in the case of Uttaranchal Education Trade and Technology (supra) and, therefore, cannot be recognized for higher education or employment in Government Service.

19. In view of the aforesaid analysis of the provisions of law and in view of the law laid down by the Supreme Court and the Division Bench of this Court in the cases of Prof. Yashpal (supra) and Uttaranchal Education Trade and Technology (supra), I am inclined to agree with the submission of the learned counsel for the respondents that the M.Phil/Ph.D marksheets issued by the Madurai Kamraj University, Chennai and the Vinayaka Missions University, Salem through Distance Education Centres in the State of M.P even if issued prior to coming into force of the Regulation of 2009 are clearly contrary to law and cannot be considered for higher education or Government service in the State of M.P

20. At this stage, it is pertinent to clarify the issue regarding retrospective applicability of the regulations and the reliance placed by the petitioners on the decision of Gwalior Bench of this Court in W.P No. 3290/2012.

21. The UGC Regulations, which have come into force w.e.f 17-7-2009, provide that M.Phil and Ph.D Degrees shall henceforth not be conferred through the system of Distance Education. The notification itself makes the regulations applicable from the date of publication. It, therefore, means that courses of M.Phil and Ph.D and the subsequent conferral of degrees of M.Phil and Ph.D cannot be undertaken through Distance Education after coming into force the UGC Regulations and, therefore, I am in respectful agreement with the decision of the Gwalior Bench of this Court rendered in W. P No. 3290/2012. However, the validity of M.Phil and Ph.D degrees/marksheets, obtained prior to that date through the Distance Education system from universities situated outside the State of M.P through Distance Education Centres in the State of M.P, can definitely be examined as it is a totally different issue and has nothing to do with the question of retrospective or perspective applicability of the UGC Regulations. In other words, degrees/marksheets which are apparently illegal and invalid and have been issued without the authority of law and contrary to the provisions of law would not become valid merely because the Regulations of 2009 have prospective effect, as these degrees/marksheets could not have been recognized from the very day they were issued.

22. As far as the validity of the impugned orders is concerned, it is observed that in the light of the foregoing discussions and the law laid down by the Supreme Court in the case of Prof. Yashpal (supra); of this Court in the case of Uttaranchal Education Trade and Technology (supra) and the Regulations of 2009, the general directions issued by the impugned orders dated 14-7-2010 to reject all M.Phil and Ph.D degrees obtained through Distance Education System, cannot be sustained or upheld. I am constrained to say so as the authority concerned is required to examine each individual case in the light of the decision of the Supreme Court, of this Court and the Regulations of 2009 and thereafter take a decision as to the validity of such M.Phil/Ph.D degrees as it could be possible in a given case that the M.Phil/Ph.D degrees obtained by an applicant through Distance Education System prior to coming into force of the Regulations of 2009, may be valid and within the parameters of the law laid down by the Supreme Court as well as by this Court.

23. For the purpose of clarity, the conclusions recorded by this Court are summarized as under:—

(a) The impugned orders dated 14-7-2010 is quashed to the extent of the general direction issued therein for rejecting all M.Phil and Ph.D degrees obtained through Distance Education System;

(b) The impugned order dated 7-8-2010, which directs considering of the Regulations of 2009 while undertaking the process of appointment, is upheld with the modification that the authorities while doing so shall keep in mind the decision of the Supreme Court rendered in the case of Prof. Yashpal (supra); of this Court in the case of Uttaranchal Education Trade and Technology (supra); the notifications, orders, instructions and regulations issued by the Distance Education Council from time to time and the fact that the Regulations of 2009 have prospective applicability;

(c) It is directed that the authorities, while considering M.Phil and Ph.D degrees/marksheets obtained through the Distance Education System produced by the applicants, shall not outrightly reject the same but would examine each individual case keeping in mind the law laid down by the Supreme Court and this Court in the aforementioned cases as well as the Regulation of 2009 and take a decision in that respect individually. It is clarified that in spite of prospective applicability of the Regulations of 2009, the authorities have the right and authority to ignore invalid and illegal M.Phil and Ph.D Degrees obtained through Distance Education Centres contrary to the law laid down by the Supreme Court in the case of Prof. Yashpal (supra) and by this Court in the case of Uttaranchal Education Trade and Technology (supra); the notifications, orders, instructions and regulations issued by the Distance Education Council from time to time; and

(d) As far as the M.Phil marksheets of the petitioners are concerned, it is held that they cannot be considered for higher education or for government service in the State of M.P in view of the law laid down by the Supreme Court in the case of Prof. Yashpal (supra) and of this Court in the case of Uttaranchal Education Trade and Technology (supra).

24. In view of the aforesaid conclusions, the petitions, filed by the petitioners, are partly allowed with the directions as enumerated hereinabove.

25. There shall be no order as to the costs.

A copy of this order be placed in the record of the connected petitions.

Petitions partly allowed.