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Mainstream, VOL LIII No 43 New Delhi October 17, 2015

Whiplash for the Union Government

Monday 19 October 2015

by Sadhan Mukherjee

There seems to be no political leadership worth the name in the country today despite the massive majority of the present ruling dispensation, the NDA 2. The whoopla of 2014 is over. Non-performance is at the core of every sector of governmental activity. There may be many well-meaning Ministers but hardly any-one appears capable of handling the bureaucrats. PM Narendra Modi perhaps is the only one who can dictate and his words seem to be law. But he is busy with his foreign sojourns and other priorities.

The result is that the bureaucrats combined with the so-called regulators are having a free-run to do whatever they like. Worst and the most detrimental of their misdeeds is the educrat-bureaucrat nexus that has seriously damaged our education system. They have destroyed our existing system without putting a better one in place.

The educrats are busy with irrelevant issues; and seem to be concerned only with saffronisation of education, dress code and similar other frivolities. Their experts are bent only on proving that the Vedas are more than 6000 BC old and similar other matters of no particular consequence to our modern-day education.

The greatest disservice that the nexus has done is to our distance education (DE) system. When the UGC was set up, there was practically no distance education. What evolved as the distance education were the correspondence courses. This matured into our present distance education system where there is a face-to-face instruction to students, assignment, practical, proper examinations and supply of self-learning reading materials. In addition to that the internet has come as a great help where the student is free to get whenever and wherever needed coaching from experts and is not bound to come to a learning centre for face-to-face instruction. This is a boon to employed students.

This mode of education became so popular that many universities started it and this mode became so useful that just before the onslaught of the nexus there were about 35 lakh students using this mode of education. That number was roughly 30 per cent of our gross enrolment in higher education.

To halt this trend the nexus first tried to denigrate this mode of education claiming that the degrees awarded under this system were not equivalent to brick and mortar university degrees. This mode of education then was entrusted to the IGNOU which was already running its own DE programme. This led to a contradiction as many universities and others objected to the principle of one university approving the DE programmes of other universities.

There were other issues as well. Questions were raised as to how the IGNOU DE department oversees the functioning of other universities which are autonomous! Several committees were appointed and it was held that this was a wrong principle. Finally a bill was placed before Parliament on the basis that since DE encompasses many universities and some of whom had also set up centres abroad, it should come under a new apex entity encompassing not only the DE and UGC but also other regulators like the AICTE.

In December 2012 when the UPA Government was somewhat in doldrums and the educrat-bureaucrat nexus was smarting under their possible “loss” of power and money-making opportunities, the HRD Ministry transferred all the functions of DE from the IGNOU distance education council (DEC) to the UGC. This was clearly in violation of parliamentary rules (a law passed by Parliament cannot be amended or over-ridden by the Executive). But no one bothered except some teachers of the IGNOU who filed a case in the Delhi High Court where it continues to hang fire.

Meanwhile the Sikkim Manipal University, which had built up a highly organised DE set-up in most districts in India and abroad including a 24-hour electronic learning platform, was not given approval by the DEC on a publicly-unexplained reason. After all sorts of talks with DEC “regulators”, the Sikkim Manipal University filed a petition against the IGNOU, HRD Ministry and others to approve the SMU DE and assign reasons for the non-approval of the SMU DE. This case was filed in February 2013 and the court, in an interim order, allowed the SMU to operate till the case was disposed of.

The UGC, which took over the DE system for the DEC, did not attend the High Court for a number of hearings. And it invoked an outdated regulation of 2003 which prevented DE providers from having any centres anywhere except in the State where the university is founded. Not only that. The university cannot have any franchise model, it ordered, though there is no law in the country preventing third party assistance in education.

This UGC regulation was widely circulated and all universities and embassies as well as government departments were told that the DE degrees were not valid leading to rejection of admissions to other universities as well denial of visas by embassies and consulates. This Tughlaki diktat naturally could not be taken lying down. Four students of the SMU Centre in Kathmandu filed a petition before the Sikkim High Court since their visas were rejected by the Australian High Commission and Royal Danish Embassy. They were all scheduled to join some universities for high education. The IGNOU and Calcutta University, among others, also refused to accept the SMU passed out students.

On June 26 and 29 this year, the Sikkim High Court, in two separate judgments, underlined that a) degrees of all students admitted as of the date of the judgment, that is, June 26, were valid, b) the students admitted till the date of judgment will be deemed valid students and they were all protected by the judgment. As for the new approval of the SMU DE, the High Court asked the SMU to apply to the UGC which must decide the matter within six months.

But the nexus did not yield. The UGC declined to put the judgments in its website and for all practical purposes the UGC “ban” continued. The students again approached the Sikkim High Court for a direction to the UGC. The UGC told the Court that it was appealing to the Supreme Court against the High Court judgment. The court gave the UGC time up to August 31. On that date the UGC told the High Court that it had filed the appeal before the Supreme Court. On September 21 when the UGC Special Leave petition came up for hearing before the Supreme Court, it declined to admit the UGC SLP.

It said: “...in the peculiar facts of the case as noted by the High Court, relief is granted to the students who had undergone the distance learning courses. We are not inclined to interfere with those directions passed by the High Court on those facts.” The Supreme Court dismissed the UGC SLP with those observations but added that this may not be cited as a precedent in any other case.

The nexus, however, stuck to its guns and did not put up the High Court judgments on the UGC website. The SMU students then approached the Sikkim High Court again for a specific direction to the UGC and Union of India. The High Court, in its order dated September 28, 2015, allowed the student petition. The strong condemnation of the UGC behaviour by the Sikkim High Court is worth quoting.

It held:

It may be observed with a deep sense of consternation that the Respondent No.2-UGC has not taken with seriousness the directions of this Court in the aforesaid judgments which are now binding upon them in view of the order of the Hon’ble Supreme Court extracted earlier. The obduracy on the part of the Respondent No. 2-UGC, which could have been avoided, is highly regrettable. It is expected of them to honour directions passed by any Court of law in the Union of India. In a democracy, Rule of Law is supreme and no Executive Authority howsoever high has the authority to undermine the majesty and dignity of the Courts of law. All those holding seats of power, like the Respondent No.2-UGC, ought to be mindful of this.”

It added: “The role of the Respondent No.2-UGC is not just to issue orders, direction or notification and leave it at that unmindful of its consequences. Its primary responsibility is to ensure that public interest is subserved, particularly when the Respondent No.2-UGC is an Institution to monitor and control education of the millions of aspiring young lives. It is expected that while taking any such step situations of hardship, as faced by the students, would be anticipated and mitigative measures provided for.

It further added: “That is what this Court had done in the aforesaid two judgments considering the predicament faced by the students which was not of their making which, the Respondents No. 1 and 2 failed to do. The obvious wilful and deliberate attempt on the part of the Respondent No. 2- UGC to undermine the Authority of this Court has not escaped our notice.”

Moreover, the Court directed

: “

Be that as it may, but in its backdrop and in view of the judgments passed in WP(C) No.04 of 2013 and WP(C) No.08 of 2015 as well as the order of the Hon’ble Supreme Court, dated 21-09-2015, it is directed as under:

(a) The Respondent No. 2-UGC shall forthwith upload on its official website the judgments of this Court dated 26-06-2015 and 29-06-2015 in WP(C) No. 04 of 2013 and WP(C) No. 08 of 2015 respectively, as well as the order of the Hon’ble Supreme Court, dated 21-09-2015, in Special Leave Petition (Civil) Nos. 26223 of 2015 and 26239 of 2015.

(b) As the refusal on the part of the Australian High Commission and the Royal Danish Embassy, to accept the qualifications acquired by the students through the Distance Education Programme of the Sikkim Manipal University, Respondent No. 4, was as a result of the communication made by the Respondent No. 1, the Ministry of Human Resource Development, Department of Higher Education, Government of India, dated 11-05-2011, the Respondents No. 1 and 2 are directed to issue necessary communications not later than 10 (ten) days from the date of this order to the Australian High Commission and the Royal Danish Embassy as well as the concerned authorities of other countries informing them of the judgments passed by this Court and the order of the Hon’ble Supreme Court referred to in (a) above.

(c) In their communications, the Respondents No. 1 and 2 shall make it clear that the degrees acquired by the students who fall within the 3 (three) categories mentioned in paragraph 10 of the judgment of this Court, dated 29-06-2015 in WP(C) No. 08 of 2015, shall be recognised as valid and equal on terms with an Indian degree/programme. With the above directions, this application stands disposed of.”

The Court also directed:

It is made clear that in the event of noncompliance of the directions by any of the Respondents, the Petitioners may approach this Court for appropriate orders or directions.”

The UGC has since put these judgments and orders on its website. But the battle to show the educrat-bureaucrat nexus its place is still on. It will be useful and good if other universities also join in for it involves the future of millions of students and their employment as well as higher education in our country.

The Supreme Court has also recently had stinging comments on the functioning of some other regulators as well.

It has accused the Medical Council of India (MCI) and the Dental Council of India (DCI) of regularly making false statements and misleading it using their lawyers in college recognition and student admission matters and threatened a CBI probe. (quoted by Mail Today)

“After hearing many similar matters involving the issue of grant of renewal or permission where the Medical Council of India, the Dental Council of India and the Veterinary Council of India are one of the parties, we have taken judicial notice of the fact that the aforesaid council/authorities are not complying with the orders of this court as also the high court’s,” a Bench headed by Justice M.Y. Eqbal said. He rebuked the Dental Council of India’s lawyer for giving an assurance to the Court that it would permit a college in Tamil Nadu to admit students for the ensuing 2015-16 year while the Council, acting in contrast, told the college, despite it rectifying all deficiencies, that it will only allow admission of students for the 2016-17 session.

“When such matters are heard, some statements are made before this court by the counsel appearing on behalf of these government authorities but, on the other hand, totally different facts are brought by those counsels on papers. This is one of the instances where this court has not only been misled but also some incorrect statements have come from the Bar,” said the Bench.

“We, therefore, warn the parties to be very very careful and vigilant while making statements or submissions before this court in future. Otherwise, this court shall be constrained not only to initiate contempt proceedings but also direct a special CBI enquiry as to why things are being done in such a way”, the Court added.

The judges then directed Tamil Nadu’s lawyer to “immediately comply” with the direction of the Court and allow the college to take in students for 2015-2016 session. The Bench wondered how the Council could refuse permission for admission when the “Centre’s lawyer submitted on September 15, 2015 that it will pass order today itself and the petitioner college would be able to start admissions. Rekha Pandey, learned counsel appearing for the Union of India had also submitted before us that the order of the government permitting the petitioner to take admission of the students shall be issued during the course of the day and in the meantime the petitioner may start taking admission of the students”.

It seems that today only the courts are the succour for the common people this country. What is needed is for the universities to unite and approach the Supreme Court to protect the interest of students.

The author, a former journalist, is currently engaged in education management through distance education.