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Judgment
Devan Ramachandran, J
The petitioners in these two cases - which require to be dealt with together on account of the analogous facts and circumstances involved and the similarity of the reliefs pleaded– seek admissions to the various Universities in Kerala under the Distance Education Programmes. They say that, however, the Government of Kerala has now issued an order virtually injuncting all Universities, apart from the Sree Narayanaguru Open University (‘Open University’ for short), from conducting such programmes; and thus pray that same be set aside and they be allowed to enroll in the Distance Education Programmes to be conducted by the other Universities in Kerala.
Sri.George Poonthottam – learned Senior Counsel, instructed by Smt.Ann Maria Francis – learned counsel appearing for the petitioners in W.P(C)No.24052 of 2022, submitted that his clients have assailed Ext.P5 order of the Government dated 09.06.2022, as also Sections 47(2) and 72 of the Sree Narayanaguru Open University Act, 2021 (hereinafter referred to as ‘the Act’ for short), because both these run contrary to the constitutional guarantees of his clients’ right to higher education. He submitted that the ‘Act’ to the extent impugned, creates monopoly; while, the order of the Government forges the situation where neither the ‘Open University’ or the other Universities are able to conduct Distance Education Programmes. He argued that since the ‘Open University’ has yet not obtained the imperative approval from the University Grants Commission (UGC), they are now incapacitated from conducting the Programmes; but, on account of the impugned order of the Government dated 09.06.2022, the other Universities are also forbidden from doing so. He thus prayed that these writ petitions be allowed.
Smt.P.A.Jenziya – learned counsel appearing for the petitioners in W.P(C)No.25807 of 2022, adopted the afore submissions of Sri.George Poonthottam, adding that, on account of the delay now being caused, the petitioners are being put to irreparable prejudice.
On hearing the learned counsel for the parties as afore, I asked Sri.S.Krishnamoorthy – learned Standing Counsel for the UGC, his version on the controversy, to which, he answered saying that even this year his client has not granted any approval to the ‘Open University’ to start any of the Distance Education Programmes; thus adding that the other approved Universities can, therefore, continue with the same, based on the sanction, if any, already granted to them.
Sri.P.C.Sasidharan – learned Standing Counsel for the Open University, however, submitted that his client had already obtained approval from the UGC with respect to certain courses under the Distance Education Programme and therefore, that the challenge of the petitioners in these cases are without any basis. He thus prayed that these writ petition be dismissed.
Sri.K.B.Ramanand – learned Special Government Pleader, submitted that the impugned order of the Government dated 09.06.2022, only says that the other Universities in Kerala, approved for such purpose by the UGC, can conduct the Distance Education Programme solely until such time as the ‘Open University’ obtains recognition from them. He submitted that, therefore, if the UGC has not granted recognition to the ‘Open University’, as asserted by Sri.S.Krishnamoorthy, then the other approved Universities can certainly continue with their programmes under the sanction of the said Authority; but that, if recognition has been obtained by the ‘Open University’, then with respect to such courses, the other Universities cannot operate their courses in the said stream.
When I evaluate and consider the afore submissions, it is evident that, on one hand, the UGC takes the stand that the ‘Open University’ has not been given recognition, by them until today for any programme in the Distance Education stream; while, on the other, the stand of the said University is that they have already obtained such a recognition. This certainly is an issue which is in the realm of facts.
That said, if the Open University has not obtained recognition as of today, then certainly, the impugned order of the Government dated 09.06.2022, would not cause any prejudice or detriment to the petitioners because, even going by its terms, the other approved Universities can run the Distance Education Programmes.
I am, therefore, of the firm view that a decision in this regard will have to be taken by the Secretary, Department of Higher Education, after hearing the petitioners and the representatives of the Open University. This will have to be done quickly, since any further delay would certainly be detriment to the interests of the students.
Resultantly, I allow this writ petition with the following directions:
(a) The Secretary, Higher Education Department of the Government of Kerala, will hear the petitioners and the representatives of the Sree Narayanaguru Open University at 11 A.M. on 23.08.2022.
(b) If, in the afore process, the “Open University” is not able to show any document to the effect that they have obtained recognition from the UGC, then the Secretary, Higher Education Department, will issue orders allowing the other approved Universities to conduct the programmes in the Distance Education Mode, in terms of the order of the Government dated 09.06.2022, for this academic year. Such an order shall be issued not later than 26.08.2022.
(c) If, on the contrary, the Secretary, Higher Education Department is to find that the “Open University” has obtained recognition from the UGC for any course, then he will be at liberty to issue appropriate orders in terms of directions (a) and
(b) above, confining the conduct of courses by other Universities only as regards other subjects.
(d) The petitioners will be thereupon at liberty to apply for and to be admitted by the various approved Universities in their Distance Education Programmes and they will also at liberty to challenge any order restricting it in terms of directions (c) above; for which purpose, all their contentions are left open.
(e) The Secretary, Higher Education Department will ensure that the orders to be issued by him in terms of (b) above are communicated to the parties within 24 hours, including in the electronic mode, so as to enable them to invoke their remedies or liberties as may be available to them.