Bombay High Court: In a writ petition filed by the Symbiosis Skills and Professional University (“SSPU”), challenging the constitutional validity of four provisions of the University Grants Commission (Open Distance Learning Programmes and Online Programmes) Regulations, 2020 (“Regulations”), the Division Bench of B.P. Colabawalla and Somasekhar Sundaresan*, JJ., perused the Regulations and upheld their validity, however also acknowledging their inappropriateness for skill universities such as the petitioner. The Regulations imposed barriers on the SSPU to operate certain programmes in the open distance learning (“ODL”) and online (“OL”) modes. The Court therefore stated the University Grants Commission (“UGC”) shall be entitled to exempt the SSPU from strict compliance with the NAAC accreditation requirement for running the provided programmes in the intended modes.
Background
Through this petition, the petitioner had challenged the constitutional validity of four provisions of the University Grants Commission (Open and Distance Learning Programmes and Online Programmes) Regulations, 2020 (“Regulations”). The impugned provisions which stipulated double-entry barriers for offering undergraduate and postgraduate programmes (“Programmes”) through the Open Distance Learning (“ODL”) and Online Mode (“OL”)were:
Any ‘Higher Education Institution’ (“HEI”) must meet a certain basic accreditation score or ranking as a precondition for offering programmes through ODL or OL modes.
The programmes proposed for ODL or OL modes should also be offered in the conventional-in person attendance mode, one batch of which should have passed out.
Symbiosis Open Education Society (“SOES”) is the “sponsoring body” of the Symbiosis Skills and Professional University (“SSPU”), under the Symbiosis Skills and Professional University Act, 2017 (“SSPU Act”), a State legislation, whereunder SSPU is meant to be self-financed, but it must maintain the academic standards as stipulated by the University Grants Commission (“UGC”). However, SSPU was unable to meet the accreditation norms stipulated in the Regulations, for which the instant challenge was raised.
The petitioners contended that the first barrier was per se arbitrary and unreasonable, and that such a barrier should not be applied to skill universities, since the current parameters of accreditation of HEIs do not appropriately assess skill developmental programmes. They further contended that the second barrier was resolved to be removed by the UGC, but nothing had been done formally yet.
Besides the constitutional challenge to the Regulations, the petitioners also sought a direction to the UGC to grant them exemption from compliance of the Regulations, considering the “skill university” character of SSPU. The Regulations provide for UGC’s powers to exempt an HEI from compliance.
Court’s Analysis and Judgment
The Court perused the provisions under challenge and found that the two impugned barriers provide for, first, quality of the institution, and second, experience of the institution in offering the programme.
The Court found that the Regulations were not ex facie arbitrary, as a policy of ensuring a basic institutional quality and a proven track record with the programme in question cannot be lightly assailed as unconstitutional.
The Court stated that the stipulation of quality control standards through an accreditation score or ranking is not per se arbitrary, as the lack of quality control mechanisms are an identified threat to the utility of ODL programmes in enhancing the enrolment into higher education in the Indian society.
The Court noted that both the National Assessment and Accreditation Council (“NAAC”) and the National Institutional Ranking Framework (“NIRF”) rankings are objective tools to measure institutional quality, as they aid in determining whether an institution should be allowed to offer programmes through ODL or OL modes, which are more challenging than conventional classrooms.
Valid legislation but Inappropriate accreditation process
The Court noted that the present NAAC accreditation process is inappropriate for a skill university such as the SSPU. The Court further took note of the acknowledgment by the respondents of this inappropriateness.
The Court also noted the distinction between the objectives of a traditional university, a student of which would be prepared for the subsequent level of academic pursuit, whereas the objective of a skill university would be to prepare their students to be market-ready for a skilled job. Therefore, the NAAC’s one-size-fits-all cannot be engaged for skill universities.
While noting the inappropriateness of the accreditation methodology for skill universities, the Court held that the same could not be the reason for holding that methodology to be inappropriate.
A notable statement of the Court was, “If a constitutionally-valid provision of law is applied to a class of persons, but such application were to be evidently unreasonable in its application for that specific class, instead of assailing the provision’s validity, it would be appropriate for a constitutional court to issue directions to address such anomaly and to make its application fair, reasonable and appropriate.”
The Court acknowledged that the UGC is empowered to grant exemptions under the Regulations, and also noted that these exemptions could not be demanded by universities as a matter of entitlement, however, the Court opined that for the lack of an appropriate accreditation process for skill universities, the UGC ought to provide due weightage to this anomaly.
NIRF Ranking Procedure
The Court noted that the NIRF had confirmed the introduction of two new segments for open and skill universities in February 2024, and that SSPU had applied for the same in March 2024.
In the light of the special NIRF ranking category for skill universities, the Court refrained from commenting on the NIRF ranking, and said that should SSPU obtain a NIRF ranking, the NAAC accreditation acquirement would become unnecessary, and it would be entitled to proceed with ODL and OL courses awaiting NAAC accent.
Proven experience in offering programme
The Court stated that they being a constitutional court were restricted to the judicial review of the currently applicable law, and examined whether the second barrier was reasonable for manifestly arbitrary. Upon examination, the Court held that the concurrent offering of a programme in a conventional mode as a pre-condition to offer the same in ODL or OL modes was not arbitrary and constitutionally invalid.
The petitioners were asked by the Court to tender a list of programmes they proposed to offer through the ODL mode, and a few of which were found to be eligible for ODL mode under the Regulations, and others are to become eligible by January 2025. In the light of the latter, the Court permitted SSPU to apply for offering those programmes with effect from January 2025.
Directions and observations
The following directions and observations were made by the Court:
The provision of NAAC accreditation stipulated under the Regulations do not require any interference.
The present NAAC accreditation process is a misfit for an appropriate and reasonable accreditation of skill universities, since it relies on one-size-fits-all manual. A relevant and proportionate accreditation manual is in process of preparation.
SSPU shall be entitled to apply to the UGC for offering the proposed programmes in ODL and OL modes without waiting for the NAAC accreditation with respect to the Regulations and other applicable laws, which shall be decided on by the UGC within 12 weeks of receipt of the application.
UGC shall grant an exemption to SSPU from strict compliance with the NAAC accreditation requirement and permit SSPU to offer programmes through ODL and OL modes.
The impugned provisions of the Regulations were held not to be manifestly arbitrary and unreasonable, and therefore were not unconstitutional.
The Court clarified that their intervention was limited to enabling SSPU to streamline its process of offering the listed courses in ODL and OL modes in the light of an absent appropriate and proportionate accreditation process relevant for a skill university.
Lastly, the Court further clarified that should the SSPU be accorded an NIRF ranking, it would be entitled to proceed with ODL and OL courses.
[Symbiosis Open Education Society and Symbiosis Skills and Professional University v. University Grants Commission, Writ Petition No. 7339 of 2023, decided on 28-06-2024]
*Judgment authored by: Justice Somasekhar Sundaresan
Advocates who appeared in this case :
For the Petitioners: Ravi Bhardwaj, Ravindra Keshavrao Adsure, Bhushan Bhadgale, Sidheshwar Biradar, Advocates
For the Respondents: Rui Rodrigues, Jainendra Sheth, Advocates
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