Praneeth K vs University Grants Commission (Ugc)

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.724 OF 2020

PRANEETH K AND ORS. ...PETITIONER(S)

VERSUS

UNIVERSITY GRANTS COMMISSION (UGC) AND ORS. ...RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO. 739 OF 2020

YUVA SENA ...PETITIONER(S)

VERSUS

UNIVERSITY GRANTS COMMISSION AND ORS. ...RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO. 746 OF 2020

YASH DUBEY AND ANR. ...PETITIONER(S)

VERSUS Signature Not Verified

Digitally signed by

UNION OF INDIA AND ORS. ...RESPONDENT(S) MEENAKSHI KOHLI Date: 2020.08.28 14:20:46 IST Reason:

WITH 2

WRIT PETITION (CIVIL) NO. 745 OF 2020

KRUSHNA GOVING WAGHMARE AND ORS. ...PETITIONER(S)

VERSUS

UNIVERSITY GRANT COMMISSION AND ORS. ...RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION (C) NO.10042 OF 2020 (Diary No. 15056 OF 2020)

KAJAL MISHRA AND ORS. ...PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. ...RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO. 741 OF 2020

WEST BENGAL COLLEGE AND UNIVERSITY PROFESSORS’ ASSOCIATIOIN (WBCUPA) AND ANR. ...PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. ...RESPONDENT(S) 3

WITH

WRIT PETITION (CIVIL) NO. 794 OF 2020

SARTHAK MEHTA AND ORS. ...PETITIONER(S)

VERSUS

UNIVERSITY GRANTS COMMISSION (UGC) AND ORS. ...RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO. 814 OF 2020

RITESH ANIL MAHAJAN AND ORS. ...PETITIONER(S)

VERSUS

THE MAHARASHTRA STATE DISASTER MANAGEMENT AUTHORITY AND ORS. ...RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO. 862 OF 2020

KALICHARAM GAJBHIYE AND ANR. ...PETITIONER(S)

VERSUS

THE MAHARASHTRA STATE DISASTER MANAGEMENT AUTHORITY AND ORS. ...RESPONDENT(S) 4

WITH

WRIT PETITION (CIVIL) NO. 861 OF 2020

SOUVIK PAL ...PETITIONER(S)

VERSUS

THE STATE OF WEST BENGAL ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This batch of cases consisting of writ petitions

(except one Special Leave Petition, i.e., SLP (C) D.

No.15056 of 2020) filed under Article 32 of the

Constitution of India can be divided into two broad

groups. First group of writ petitions consists of

petitions filed by students, youth organisations and

the teachers associations challenging the guidelines

issued by University Grants Commission (hereinafter

referred to as “UGC”) dated 06.07.2020, O.M. dated

06.07.2020 issued by Ministry of Human Resource 5

Development and letter dated 06.07.2020 issued by

Ministry of Home Affairs whereby all the Universities

and Colleges across the country had been directed to

conduct terminal semester/ final year examinations by

30.09.2020. A further relief has been sought

directing the respondents to declare the results of

the students of the final year/terminal semester

examinations of all universities/ institutions of the

country on the basis of their past

performance/internal assessment and to award

marksheets and degrees. The second group of writ

petitions are the writ petitions filed by the

students challenging the decision of the State

Disaster Management Authority as well as of the

States (State of Maharashtra and State of West

Bengal) for not holding final term examination.

Further prayers have been made that State of

Maharashtra as well as State of West Bengal be

directed to comply with the UGC revised guidelines

dated 06.07.2020 and O.M. dated 06.07.2020 of 6

Ministry of Human Resource Development. The special

leave petition has been filed against a common order

dated 14.07.2020 passed by the High Court of Delhi in

Writ Petition No. 3199 of 2020 and other connected

matters by which the High Court noted the schedule of

examination in the Open Book Examination (OBE) mode

by University of Delhi.

2.In Writ Petition (C) No. 724 of 2020, Praneeth K and

Others Vs. University Grants Commission and Others, a

common counter affidavit, additional affidavit and

affidavit in reply to the UGC has been filed. The

State of Maharashtra has also filed affidavits in

Writ Petition (C) No. 724 of 2020. All the parties

in Writ Petition (C) No. 724 of 2020 are represented.

Other writ petitions and special leave petition are

tagged with Writ Petition (C) No. 724 of 2020. The

decision in Writ Petition (C) No. 724 of 2020 shall

be sufficient to answer the issues raised in this

batch of cases. The pleadings in Writ Petition (C) 7

No. 724 of 2020 need to be noted in some detail with

brief reference of prayers in other writ petitions

and special leave petition.

Writ Petition (C) No. 724 of 2020 ­ Praneeth K and Ors. Vs. University Grants Commission and Ors.

3. This writ petition has been filed by 31 students

pursuing undergraduate or postgraduate terminal

semester/final year courses in different Universities

located in different States across the country. The

petitioners are studying in different Universities

located in States of Kerala, Maharashtra, Assam,

Gujarat, Himachal Pradesh, Uttarakhand, NCT Delhi,

Orissa, Madhya Pradesh, West Bengal, Haryana, Uttar

Pradesh, Bihar and Meghalaya. Petitioners’ case is

that due to pandemic COVID­19, Government of India

announced the nationwide lockdown w.e.f. 24.03.2020

in order to contain the spread of COVID­19. The

Ministry of Health & Family Welfare, Government of

India issued various directions, guidelines and SOPs. 8

Various educational institutes and Universities

extended their dates of examination for various

courses postponing the same indefinitely.

4.UGC constituted an Expert Committee to deliberate and

make recommendations regarding issues of examination

and academic calendar. The Expert Committee

submitted its report on basis of which UGC issued

guidelines on 29.04.2020, in which guidelines it was

proposed to take the final year university

examination by 31.07.2020. Number of COVID cases

being still rising, the above Expert Committee was

requested by UGC to revisit the guidelines. The

Expert Committee submitted its report, which was

approved by UGC on 06.07.2020 and UGC revised the

guidelines and issued academic calendar for final

year examinations. In view of COVID­19 pandemic, the

revised guidelines provided that Universities are

required to complete the examinations by end of

September, 2020 in offline (pen and 9

paper)/online/blended (offline + online) following

the prescribed protocol/guidelines relating to COVID­

19. On 06.07.2020, the Ministry of Human Resource

Development formulated SOP for conduct of the

examination duly vetted by Ministry of Health and

Family Welfare. On 06.07.2020, the Ministry of Home

Affairs by a letter permitted the Ministry of Human

Resource Development to conduct the examination by

Universities and institutions.

5.The petitioners’ case is that the decision of the

UGC, Ministry of Human Resource Development and

Ministry of Home Affairs to conduct the final

term/final examinations of Universities and

institutions throughout the country amid COVID­19

pandemic is extremely arbitrary, whimsical and

detrimental to the health and safety of the students

as well as violative of fundamental rights of lakhs

of students enshrined under Articles 14 and 21 of the 10

Constitution of India including those of the writ

petitioners.

6.In pursuance of the guidelines dated 06.07.2020,

various institutions and colleges have issued

notifications notifying the final year examination.

Many universities and educational institutions of

India and abroad have issued their admission

notification for the year 2020­2021 wherein the last

date of online registration was 31.07.2020 and unless

a candidate possess the degree before that he cannot

apply for admission. Representation dated 09.07.2020

has been submitted to the Minister of Human Resource

Development to find an alternate way to save the

careers of the students. The petitioners have

further claimed that various other examination Boards

like CBSE, ICSE, ISC have cancelled their Xth/XIIth

Board examination due to COVID­19 pandemic and has

declared the result on the basis of past

performance/internal assessment. On one hand, the UGC 11

has exempted the students of intermediate

years/semester from appearing in the examinations due

to COVID­19 outbreak and on the other hand has forced

the final year students to appear in the

examinations, which is discriminatory and arbitrary.

The petitioners in the writ petition have made

following specific prayers:­

a) Issue urgent Writ In the nature of mandamus or any Other appropriate Writ, Order or Direction to quash and set aside the Letter bearing D.O. No.F.1­1/2020 (Secy) dated 06.07.2020 issued by the Respondent No.1 UGC (Annexure P­3) AND the Office Memorandum bearing F.No. 16­16/2020­ U1A dated 06.07.2020, issued by the respondent No. 3 MHRD (Annexure P­4) AND Notification bearing NW/RK/PK/AD/DD dated 06.07.2020, issued by the Press Information Bureau, Government of India (Annexure P­5) whereby all the Universities and Colleges across India have been directed to conduct final Term/final year examinations by 30.09.2020;

and/or

b) Accordingly, issue urgent Writ In the nature of mandamus or any other

appropriate Writ, Order or Direction to the Respondent Nos. 1, 2 and 3 to not conduct the final Term/ final Year 12

examinations of all Universities/ institutions across India; and/or

c) Issue urgent Writ in the nature of mandamus or any other appropriate Writ, Order or Direction to the Respondent Nos.1, 2 and 3 to declare results of the Petitioners and other similarly situated students of the final Term/ final Year examinations of all Universities/ Institutions across India, on the basis of their past performance/ internal assessment and to award marksheets and degrees to all successful students on or before 31.07.2020; and/or

d) Issue urgent Writ in the nature of mandamus or any other appropriate Writ, Order or Direction to the Respondent Nos.1, 2 and 3 to also adopt CBSE mechanism end provide subsequently another chance to Improve marks to those willing students, who may be unsatisfied with their score based upon their past performance or Internal assessment; and/or

e) Pass any other order or direction as this Hon’ble Court may deem it and proper In the facts and circumstances of the case and in the interest of justice.”

7.By our order dated 27.07.2020, we had directed the

petitioners to serve a copy to learned Solicitor 13

General as well as learned counsel for the UGC.

Three days’ time was given to file the counter

affidavit and rejoinder was directed to be filed on

next date. In pursuance of order dated 27.07.2020, a

common counter affidavit dated 30.07.2020 has been

filed by UGC. UGC has also filed additional

affidavits. An affidavit dated 05.08.2020 was also

filed by the State of Maharashtra in Writ Petition

(C) No. 724 of 2020, reply of which was filed by the

UGC vide its affidavit dated 17.08.2020. Pleadings

were complete in Writ Petition (C) No. 724 of 2020,

consideration of which writ petition shall answer all

issues raised in this batch of cases.

Writ Petition (Civil) No. 739 of 2020 – Yuva Sena Vs. University Grants Commission and Ors.

8.This writ petition has been filed as a public

interest litigation by the petitioner, which is youth

wing of Shiv Sena, registered and recognized

political party in India. After issuance of revised 14

guidelines dated 06.07.2020 by UGC, the petitioner

claims to have addressed a letter dated 07.07.2020 to

Minister of Human Resource Development praying to

reconsider the decision of compulsorily conducting

final year examinations. Petitioner’s case is that

UGC had issued earlier guidelines dated 29.04.2020,

which were advisory in nature and each University was

to chart out its own plan of action taking into

consideration the issues pertaining to COVID­19

pandemic. Petitioner’s case is that revised

guidelines have been passed in ignorance of rising

cases of COVID­19 and have crated great fear in the

minds of students around the country especially in

the States of Maharashtra, West Bengal, Tamil Nadu

and Delhi. The impugned guidelines have not taken

into account the consequent risk of life to which the

students writing examinations would be exposed to.

9.Petitioner’s case further is that various States are

suffering gravely from pandemic of COVID­19 and 15

respective State Governments have imposed/implemented

various levels of lockdown under the Disaster

Management Act, 2005. Petitioner pleads that as a

result of the lockdown, Universities, schools,

educational institutions were forced to shut down and

to postpone the terminal semester/final year

examinations. Petitioner pleaded that pursuant to

the UGC guidelines dated 29.04.2020, the Ministry of

Higher and Technical Education, State of Maharashtra

had set up a State level Committee in view of the

grave situation of pandemic COVID­19, which Committee

submitted a report on 06.05.2020 and recommended that

the final year exams may be conducted between

01.07.2020 to 31.07.2020, the said recommendations

were objected by petitioner and representation was

made to cancel the examinations. Petitioner also

claims to have made a representation to the

Government of Maharashtra requesting for not to hold

any examinations. On 19.06.2020, the State of

Maharashtra vide a Government Resolution dated 16

19.06.2020 took a resolution for cancellation of the

terminal semester/final year examinations

considering the safety of health and life of the

students and for the allotment of grades and

aggregate marks to students based on their previous

semester and internal marks.

10. Petitioner’s case is that cases of COVID­19 are

increasing day by day in the State of Maharashtra and

many college buildings in the State of Maharashtra

have been requisitioned by the State Government / its

bodies like Municipal Corporation to be converted

into quarantine centres and for other public purpose

in view of present pandemic COVID­19, hence it is

impractical to hold examinations. In the writ

petition, petitioner has also given certain details

with regard to different States pertaining to number

of COVID­19 cases like States of Tamil Nadu, NCT of

Delhi, Gujarat, Karnataka, Uttar Pradesh, Telangana,

Andhra Pradesh, West Bengal and others, the 17

decisions taken by different States of not conducting

final examinations. Petitioner also referred to and

relied on judgment of this Court in Writ Petition (C)

No. 566 of 2020 – Amit Bathla & Ors. Vs. Central

Board of Secondary Education & Anr, where this Court

noticed the notifications issued by CBSE cancelling

the examinations for classes Xth/XIIth, which was

scheduled from 01.07.2020 to 15.07.2020. petitioner

in the writ petition has also prayed for a writ of

Certiorari setting aside the impugned revised

guidelines dated 06.07.2020 issued by UGC and O.M.

dated 06.07.2020 issued by Ministry of Human Resource

Development. It has also prayed to clarify and

declare that as per UGC guidelines dated 29.04.2020,

each university may chart out its own plan of action

with respect to terminal semester/final year

examinations taking into consideration the issues

pertaining to the COVID­19 pandemic. 18 Writ Petition (Civil) No. 746 of 2020 – Yash Dubey and Anr. Vs. Union of India and Ors.

11. This writ petition has been filed by petitioner

No.1, a final year law student and petitioner No.2,

an association of lawyers registered under Society

Registration Act, 1860 namely, Youth Bar Association

of India. The petitioners plead that cause of action

for filing of the writ petition has arisen on

06.07.2020 when Ministry of Home Affairs issued

notification dated 06.07.2020 and the UGC issued

revised guidelines dated 06.07.2020. The

petitioners’ case is that in view of increasing

number of COVID­19 cases, many States like Madhya

Pradesh, Rajasthan, Punjab and Maharashtra have

announced cancellation of examination of final year

students and for promotion of the final year

students. The petitioners further pleaded that on

11.07.2020, Tamil Nadu Government wrote a letter to

HRD Minister informing that they are not in a

position to conduct college examinations for the 19

final year students. Another letter dated 11.07.2020

by Punjab Higher Education Minister written to HRD

Minister is referred where all decisions dated

06.07.2020 was asked to be reviewed, decision of

Government of Delhi dated 11.07.2020 to cancel all

ongoing examination have also been referred to.

Petitioners have prayed for setting aside the

notification dated 06.07.2020 issued by Ministry of

Home Affairs and revised UGC guidelines dated

06.07.2020. The writ petitioners have also prayed

for certain other payers to provide for alternative

mode of assessment of the final year students in wake

of COVID­19 outbreak; to call upon Universities to

submit a set of parameters for evaluation of the

students on the basis of students past performance

and accordingly award provisional degrees to the

students and to promote the students on the basis of

the performance in the previous semesters by taking

an aggregate score for all the semesters. 20

Writ Petition (Civil) No. 741 of 2020 – West Bengal College and University Professors’ Association(WPCUPA) and Anr.Vs. Union of India & Ors.

12. This writ petition has been filed by the West

Bengal College & University Professors’ Association

(WBCUPA) through its President. The petitioners

pleaded that on 27.06.2020 in the State of West

Bengal, all Vice Chancellors and Registrars of the

Universities held a meeting with the Minister and

arrived at a consensus for alternate method of

marking of final semester examination in the State

and decided to declare the result by 31.07.2020. A

memorandum dated 27.06.2020 was issued by the

Government of West Bengal, Department of Higher

Education to the above effect. Petitioners case is

that revised UGC guidelines is in abject

contravention of students’ welfare since by the time

these examinations through special chance will be

conducted most of the Universities have closed their

admission application for postgraduate courses. With 21

the continuous spike in COVID­19 cases in the entire

country including the State of West Bengal, situation

will not at all be conducive to conduct offline

examination by 30.09.2020. The petitioner also

refers to letter dated 11.07.2020 written by Chief

Minister of West Bengal to Hon’ble Prime Minister

requesting to get the matter re­examined and restore

the earlier advisory of UGC dated 29.04.2020.

Petitioners have also referred to various

representations made by various Universities from

State of West Bengal to UGC to reconsider its

decision to hold examinations. Petitioners in writ

petition has prayed for Mandamus commanding the

respondent No.1 to forthwith rescind and/or cancel

and/or withdraw the letter dated 06.07.2020.

Writ Petition (Civil) No. 745 of 2020 – Krushna Govind Waghmare and Ors. Vs. University Grant Commission and Ors.

13. This writ petition has been filed by five

petitioners, who are final year law students of 22

various educational institutions affiliated to

Universities of Maharashtra. Petitioners’ case is

that UGC before issuing the revised guidelines have

not considered the deadly COVID­19 pandemic.

Petitioners have also referred to cancellation of Xth

and XIIth examinations by CBSE and ICSE. Petitioners

have prayed for quashing the guidelines dated

06.07.2020 and has further prayed that this Court may

be pleased to grant the benefit of decision dated

19.06.2020 (State of Maharashtra) to the students of

professional courses and necessary directions to the

respondent State may also be issued.

Writ Petition (Civil) No. 794 of 2020 – Sarthak Mehta and Ors. Vs. University Grants Commission (UGC) and Ors.

14. This writ petition has been filed by three

petitioners. Petitioner Nos. 1 and 2 are advocates

and petitioner No. 3 is a final year law student 23

studying in Pune. Petitioners’ case is that earlier

UGC guidelines dated 29.04.2020 left the decision to

take or not to take the examinations of the students

with the Universities keeping in view the spread of

COVID­19 whereas impugned guidelines dated 06.07.2020

have made it compulsory for the Universities to

conduct final year examinations by the end of

September, 2020 irrespective of the spread of COVID­

19 in different regions/States. Petitioners’ case is

that impugned guidelines is ultra vires to the

Articles 14 and 21 of the Constitution. Petitioners

have also prayed for quashing the guidelines dated

06.07.2020 and for quashing the O.M. dated 06.07.2020

of Ministry of Human Resource Development and letter

dated 06.07.2020 and it has been further prayed that

result of students be declared on the basis of

previous semester/year performance/internal

evaluation.

24

Writ Petition (Civil) No. 814 of 2020 – Ritesh Anil Mahajan and Ors. Vs. The Maharashtra State Disaster Management Authority and Ors.

15. This petition has been filed by four petitioners

out of which three are students and fourth petitioner

is member of Senate of University at Jalgaon elected

from the graduate’s constituency. The State Disaster

Management Authority of the State of Maharashtra has

been impleaded as respondent No.1, State of

Maharashtra as respondent No.2 and UGC as respondent

No.3. The petitioners plead that the Ministry of

Higher and Technical Education of the State of

Maharashtra set up a State­level Committee headed by

the Vice­Chancellor, Mumbai University in view of

grave situation created by COVID­19 pandemic. The

Committee submitted its report on 06.05.2020

recommending that the final year exams be conducted

between 01.07.2020 to 31.07.2020. The statement of

Chief Minister dated 31.05.2020 has been referred to 25

where he declared that no examinations will be

conducted for final year students and all students

will be given marks by averaging the marks obtained

in the previous semester examinations. The State

Disaster Management Authority in its meeting dated

18.06.2020 took various decisions resolving that

taking into consideration the state of COVID­19 in

the State of Maharashtra, examination of final year

professional courses cannot be arranged. With regard

to non­professional courses, decision was also taken

for declaring their result as per decision taken in

the meeting. The State of Maharashtra issued a

resolution dated 19.06.2020 regarding non­

professional and professional courses, the

methodology for declaring the result. The

petitioners are challenging the decision taken by

State Disaster Management Authority dated 18.06.2020

as well as the resolution of the State of Maharashtra

dated 19.06.2020 and have prayed for setting aside

the aforesaid two decisions.

26 Writ Petition (Civil) No. 861 of 2020 – Souvik Pal Vs. The State of West Bengal

16. This petition has been filed by a final year

B.Sc. student studying in a College of State

University of West Bengal. The petitioner is

challenging the decision dated 27.06.2020 issued by

State Government of West Bengal regarding the

undergraduate and postgraduate examinations, 2020.

The State of West Bengal vide its decision dated

27.06.2020 issued an advisory to the effect that for

the evaluation of students in terminal semester

/final year of the General Degree courses at

undergraduate/postgraduate level, 80% weightage shall

be given to the best aggregate percentage obtained by

the candidate in any of the previous

semesters’/years’ results and 20% to internal

assessment during the current semester/year as

adopted by the university. The petitioner in the

writ petition has prayed for quashing the order dated

27.06.2020 and also prayed for a direction to the 27

State of West Bengal and State Universities to comply

with the UGC’s revised guidelines dated 06.07.2020,

O.M. of Ministry of HRD dated 06.07.2020 and UGC’s

letter dated 08.07.2020.

Writ Petition (Civil) No. 862 of 2020 – Kalicharam Gajbhiye and Anr. Vs. The Maharashtra State Disaster Management Authority and Ors.

17. This writ petition has been filed by two

students, who are studying in a University in the

State of Maharashtra. Petitioners have challenged the

decision dated 18.06.2020 of the Maharashtra State

Disaster Management Authority as well as the decision

of the Government of Maharashtra dated 19.06.2020 and

subsequent decision dated 13.07.2020 of the

Maharashtra State Disaster Management Authority and

further prayer was made that State of Maharashtra and

State Universities therein be requested to comply

with the UGC’s revised guidelines dated 06.07.2020, 28

O.M. of HRD Ministry dated 06.07.2020 and UGC’s

letter dated 08.07.2020.

SLP(C)No.10042(Diary No. 15056) of 2020 – Kajal Mishra and Ors. Vs. Union of India and Ors.

18. This special leave petition has been filed by six

petitioners challenging the judgment and common order

dated 14.07.2020of the Division Bench of High Court

of Delhi in Writ Petition (C) No. 3199 of 2020 –

Prateek Sharma and Anr. Vs. Union of India and Anr.

with other connected writ petitions. The petitioners

were not party in the writ petition before the High

Court. The High Court in its order dated 14.07.2020

noticed that entire scheme of examination has to be

worked out afresh by the Delhi University and dates

for conducting examinations of various undergraduate

courses to be finalized. The Delhi High Court

directed the University to issue a notification at

the earliest placing on the record the revised

schedule of the examination. The writ petition 29

before the Delhi High Court is still pending and in

pursuance of order dated 14.07.2020 the examinations

in Open Book Examination (OBE) mode had already

commenced. Petitioners’ case is that in batch of

writ petitions filed in the Delhi High Court, the

conduct of examination by online mode was also

challenged. The petitioners plead that other

Universities are evaluating their final year students

through internal assessment and the students of Delhi

University shall be deprived of the equal opportunity

in respect of admission and post graduate employment

opportunities etc.

19. In the writ petitions although no formal notice

was issued but, in all writ petitions the respondents

have appeared through counsel(except W.P.No.739 of

2020). In Writ Petition No.739 of 2020 all the States

and Union Territories were impleaded as respondents

in addition to University Grants Commission as

respondent No.1, Ministry of Human Resource 30

Development, respondent No.2, Ministry of Home

Affairs, respondent No.3. The State of Maharashtra

and NCT of Delhi appeared through their counsel and

filed affidavits. The State of Orissa has also

appeared through its Advocate General. We have not

issued notice to all the States who were impleaded in

Writ Petition No.739 of 2020. The State of

Maharashtra, State of West Bengal, NCT of Delhi and

State of Orissa have sufficiently presented the stand

of the States and Union Territories. The above

States/UTs have communicated the Ministry of Home

Affairs, Government of India that they are unable to

hold the examination due to spread of COVID­19.

Before us the cause of States, power of States and

States’ Disaster Management Authority have been

sufficiently represented. We are, thus, of the view

that for deciding this batch of cases it is not

necessary to issue notice to all the States and Union

Territories and the issues raised can be decided

after hearing the respondents, Ministry of Human 31

Resource Development, Ministry of Home Affairs,

Government of India, State of Maharashtra, State of

West Bengal, NCT of Delhi and State of Orissa. We,

thus, proceed to consider the submissions raised to

decide the matter on merits.

20. As indicated above in Writ Petition No.724 of

2020 pleadings are complete and in Writ Petition

No.739 of 2020 convenience compilation in two volumes

has been filed by the learned counsel for the

petitioners. It shall be sufficient to refer the

pleadings in Writ Petition No.724 of 2020 and

convenience compilations for deciding all the issues

raised before us.

21. For the writ petitioners, we have heard Dr.

Abhishek Manu Singhvi, Senior Advocate, Shri Shyam

Divan, Senior Advocate, Shri Jaideep Gupta, Senior

Advocate, Shri Vinay Navare, Senior Advocate, Shri 32

Kishore Lambat, Shri Alakh Alok Srivastava and other

learned counsel.

22. We have heard Shri Tushar Mehta, learned

solicitor General for University Grants Commission.

We have heard Shri Arvind Datar, learned senior

counsel for the State of Maharashtra, Shri K.V.

Vishwanathan, learned senior counsel for the

Government of NCT of Delhi, Shri Ashok Parija,

Advocate­General, for the State of Odisha, Shri

Kishore Dutta, learned Advocate General for the State

of West Bengal. Ms. Meenakshi Arora, learned senior

counsel has appeared for the petitioner in

SLP(C)Diary No.15056 of 2020.

23. Dr. Abhishek Manu Singhvi appearing for the

petitioner in Writ Petitioner in W.P.(C)No.746 of

2020 submits that revised UGC Guidelines dated

06.07.2020 are in complete disagreement and have been

issued in complete disregard with the earlier 33

guidelines dated 29.04.2020. The guidelines dated

29.04.2020 were advisory in nature and provided

flexibility to the Universities to implement the

guidelines in the best interest of students. The

guidelines provided that in case the pandemic

situation does not normalise the grading can be on

the basis of internal evaluation and past performance

of the student. Various State Governments including

State of Maharashtra, State of West Bengal, NCT of

Delhi and other States have expressed their inability

to organise the examination in the wake of increase

in COVID cases in the respective States. The deadline

of 30.09.2020 is unrealistic and unattainable. The

most of the Colleges/Universities/ Institutions have

been converted into COVID Health Care Centres.

Therefore, conducting of exams through offline mode

will entail a huge risk of transmission of virus, it

will be absolutely unjust to neglect the problems of

adopting uniform online mode of exams and also the

infrastructural disparities. The office memorandum 34

issued by the Ministry of Human Resource Development

dated 06.07.2020 is itself flawed and in complete

disregard to the Ministry of Home Affairs guidelines

dated 29.07.2020, which provide that in areas outside

the Containment Zones, all activities will be

permitted, except the Schools, Colleges, Educational

and Coaching Institutions will remain closed till

31.08.2020. Section 72 of the Disaster Management

Act, 2005 provides that decisions taken and orders

issued thereunder will have overriding effect. If a

decision is taken by the appropriate authority under

Act, 2005 regarding non­holding of examination, the

same will operate and hold the field despite the

provisions of the UGC Act. Section 12 of the UGC Act

mandates that guidelines need to be framed in

consultation with the Universities. All Universities

were not consulted before issuing the impugned

guidelines.

35

24. Dr. Singhvi has also referred to and relied on

the decision taken on 13.07.2020 by the State

Disaster Management Authority of the State of

Maharashtra where decision was taken not to conduct

the examination in the current circumstances. Dr.

Singhvi submits that right to life and health is the

right guaranteed under Article 21 of the

Constitution. Conducting of the examination involves

huge amount of travel, huge use of public transport

which are not possible in the present state of

affairs in the various States including the State of

Maharashtra. The present pandemic is a special

situation which is state neutral. The University

Grants Commission Act and the guidelines framed

thereunder shall not have overriding effect on the

action under the Act, 2005. The Disaster Management

Act being a latter and special Act shall operate. He

further submits that the guidelines dated 06.07.2020

are manifestly arbitrary and liable to be set aside

on this ground alone.

36

25. Shri Shyam Divan, learned senior counsel,

appearing for the petitioner in Writ Petition No.739

of 2020 submits that to elevate human life,

fundamental norms have been engrafted in the regime

of Disaster Management Act. There are decentralized

units which may apply structured standard. He submits

that students, teachers and their respective families

are all homogeneous groups, they cannot be treated

differently for the purpose of conducting final

year/terminal semester exams by the UGC. Shri Divan,

learned counsel for the petitioner referring to the

Ministry of Home Affairs order dated 15.04.2020

contends that prohibited activities included “all

educational, training, coaching institutions etc.

shall remain closed”. He submits that the said

prohibition is still continued and is operating till

31.08.2020 which does not permit holding of any exam.

Referring to the earlier guidelines dated 29.04.2020,

Shri Divan submits that the guidelines were advisory 37

in nature and there was flexibility at local level in

the guidelines whereas the revised guidelines dated

06.07.2020 makes it compulsory to complete

examination before 30.09.2020. Revised guidelines

disregard the health factor. There is no statement in

the revised guidelines that COVID­19 situation has

improved.

26. Reverting to the Disaster Management Act, Shri

Divan submits that disaster is still continuing, the

State authorities under Disaster Management Act are

equally empowered to take measures. Shri Divan

further submits that letter issued by Ministry of

Home Affairs permitting holding of examination cannot

supersede the statutory provisions. There are issues

of lack of appropriate infrastructure for conducting

online examination, the impugned guidelines violate

the right of students and their families. The

guidelines are impractical and unclear. The order

issued under the Disaster Management Act shall

override the revised guidelines dated 06.07.2020. The 38

revised guidelines are manifestly arbitrary,

inappropriate and violative of Articles 14 and 21 of

the Constitution of India. The writ petitioner is an

organisation which works towards the betterment of

educational facilities for the students of India. The

petitioner has written to Ministry of Human Resource

Development on 07.07.2020 praying to reconsider the

revised guidelines issued by the Ministry.

27. Shri Arvind Datar, learned senior counsel

appearing for the State of Maharashtra, submits that

UGC has no legislative competence with regard to

conduct of examination. It is submitted that revised

guidelines have been issued under University Grants

Commission Act, 1956 which is referable to Entry 66

of List I of the Seventh Schedule of the

Constitution, which is confined to “co­ordination and

determination of standards”. Shri Datar placed

reliance on the Constitution Bench judgment of this

Court in Modern Dental College and Research Centre 39

and others vs. State of Madhya Pradesh and others,

(2016) 7 SCC 353. Shri Datar submits that UGC can lay

down only the qualification. Shri Datar submits that

not holding final examination and awarding Degree on

the basis of earlier semester’s performance is not

diluting the standards of education in any manner.

The students have completed five semesters (in the

State of Maharashtra) by March, 2020 and for final

semester internal assessment is also over, hence, the

students could have been promoted on the basis of

earlier assessments and there is nothing arbitrary in

giving Degree to the students on the basis of earlier

results. The directions of UGC to hold examination by

30.09.2020 is completely beyond the power of UGC.

Revised guidelines do not take into consideration the

different situations of different States. In the

State of Maharashtra situation is grave in view of

phenomenal increase in the COVID­19 cases. The

University Grants Commission cannot fix the date for

holding examination. In the city of Pune itself which 40

is the hub of the education more than half of the

students have left for their home and hostels have

been vacated. There are about 7.35 lacs non­

professional and 2.84 lacs are professional students,

public transport being not in operation it is

difficult for the students to reach at the

examination centres. Revised guidelines issued by the

UGC are violative of Article 14 because they apply

throughout the India and give one fix date, i.e.,

30.09.2020 irrespective of the conditions prevailing

in the State.

28. Shri Datar further submits that guidelines are

violative of Section 12 of the University Grants

Commission Act, 1956. Section 12 requires

consultation with various Universities and other

bodies. Other bodies shall include State Disaster

Management Authority. There has been no consultation

as per Section 12. The State of Maharashtra was not

consulted before issuing the revised guidelines, the 41

guidelines are, thus, not in accordance with Section

12. Shri Datar submits that provisions of Disaster

Management Act will have overriding effect. He placed

reliance on Section 72 of the Act, 2005. Section 72

shall override not only the provisions of Maharashtra

University Act but also University Grants Commission

Act, 1956 and also the decision taken and orders

issued under Act, 1956. In the circumstances decision

taken by the State Disaster Management Authority in

the State of Maharashtra in not holding examination

shall operate and hold the field despite the

provisions of UGC Act and the revised guidelines.

Shri Datar has also referred to Section 18 and 24 of

Act, 2005 and submits that earlier Guidelines dated

29.04.2020 were advisery in nature. Shri Datar has

also referred to UGC (Minimum Standards of

Instruction for the Grant of the First Degree through

Formal Education) Regulations, 2003. The proposal of

Maharashtra Government to grant Degree on the basis

of first five semesters and internal assessment is in 42

accordance with Regulations, 2003. Shri Datar has

referred to and relied on the Government Resolution

dated 19.06.2020 as well as the decision dated

18.06.2020 of State Disaster Management Authority.

29. Shri Ashok Parija, learned Advocate General for

the State of Odisha adopts the submission of Shri

Arvind Datar. He submits that it is not possible to

hold the final examination by 30.09.2020. Shri Parija

submits that there are several reasons which make it

impossible to take physical examination in the

present scenario. The public transport is not

functioning, Schools and Colleges are closed from

25.03.2020 and students have gone back to their

native places. Several Colleges are presently being

used by the District Administrations as Quarantine

Centres, COVID Care Home, COVID Care Centre, COVID

Care Hospital, etc. COVID­19 infection is spreading

rapidly in the State of Odisha. It is not feasible to

conduct online examination also since most of the 43

students belong to the lower and medium income group

and do not have desktop or laptop or decent smart

phone at home. The Minister, Ministry of Higher

Education, Government of Odisha has issued

instructions for adopting alternative procedure for

undergraduate or post­graduate final year or final

semester students which is in consonance with UGC

guidelines dated 29.04.2020. To await indefinitely

for conducting of examination shall delay the

academic calendar.

30. Shri Jaideep Gupta, learned senior counsel

appearing for the petitioner in Writ Petition No.741

of 2020 submits that on 27.06.2020 an advisory was

issued by the State of Bengal to the effect that

students in terminal semester/final year of the

General Degree courses at under­Graduate/post­

Graduate level, 80% weightage should be considered on

the basis of the best aggregate percentage obtained

by the candidates in any of the previous 44

semesters’/years’ results and 20% on internal

assessment during the current semester/year. The

result of final year/semester would be declared by

31.07.2020.

31. Shri Gupta submits that UGC guidelines dated

06.07.2020 is not a statutory document but it is an

executive instruction. He submits that it is

unreasonable to direct the State to hold the

examination by 30.09.2020. He submits that in the

State of West Bengal most of the Universities are not

the Campus University but a large number of Colleges

are affiliated and local trains and metros are not

working. Several districts are also affected by Super

Cyclone Amphan. He submitted that no physical

examination is possible in the State of West Bengal.

There is lack of digital infrastructure. The

guidelines are violative of Section 12 of Act, 1956

since relevant fact is not taken into consideration. 45 Section 12 of the UGC Act requires consultation which

means effective consultation.

32. Shri Kishore Dutta, learned Advocate General, has

appeared for the State of West Bengal. Shri Dutta

submits that UGC has not taken into consideration the

pandemic. He submits that public health has to be

taken into consideration. He has also referred to

Article 39(e),41, 45, 46 and 47 of the Constitution

of India. He submits that every State has peculiar

problems and UGC could not have taken a decision

without consulting the States.

33. Shri K.V. Vishwanathan, learned senior counsel

for NCT of Delhi submits that on 11.07.2020, Deputy

Chief Minister wrote that because of pandemic,

examination cannot be held. He submits that online

infrastructure was also not sufficient. Shri

Vishwanathan submits that Entry 66 of List I of 7th

Schedule has no role to play. The students have no 46

access to the books, online has its own shortcomings.

The guidelines dated 29.04.2020 were only advisory

and now guidelines dated 06.07.2020 have been made

compulsory. He submits that guidelines dated

06.07.2020 has no statutory force. Shri Vishwanathan

submits that there is no rational distinction between

pre­final or final examination and it is easier to

evolve mechanism for final examination. Shri

Vishwanathan submits that this Court may consider for

appointing an independent commission for exploring

the solution.

34. Shri Alakh Alok Srivastava, counsel appearing for

the petitioner submits that guidelines dated

06.07.2020 have been issued in violation of Section

12. He submits that words “other bodies” occurring in

Section 12 means health experts also. He submits that

there was no pan­India consultation before issuing

guidelines. He further submits that the guidelines

issued under Section 12 are only advisory. Referring 47

to Section 14 of UGC Act, he submits that UGC has

right only to stop the grant. He submits that Section

22 right of conferring or granting degrees shall be

exercised only by a University, who is authorised to

confer the Degrees.

35. Referring to Regulation 6.3 of Regulation 6 of

2003 Regulations, Shri Srivastava submits that nature

of final examination, whether written or oral or

both, in respect of each course, ought to have been

made known to the students at the beginning of the

academic session. He submits that there is violation

of Article 14 of the Constitution. Shri Srivastava

has submitted that criteria as suggested by the State

of Madhya Pradesh which is at page 463 of the

compilation Volume II should be accepted and

necessary direction be issued accordingly.

36. Shri Kishor Lambat, counsel appearing in Writ

Petition No.745 of 2020 submitted that when not even 48

50% syllabus is complete how the examination can be

held. The Bar Council of India has resolved to

postpone the All India Bar Examination keeping in

view the present pandemic. UGC has not taken opinions

and advice of relevant bodies. Online examination is

not feasible in the present situation.

37. Ms. Meenakshi Arora, learned senior counsel

appearing in SLP, filed against the order of the

Delhi High Court contends that present system of

online examination does not provide a level playing

field, left over students will be given chance, it

will delay the whole process. She submitted that

Delhi High Court in issuing impugned order dated

14.07.2020 has not considered the challenges to the

online examination. She further does not dispute that

in pursuance of the impugned direction of the Delhi

High Court online examinations have commenced by the

Delhi University.

49

38. Shri P.S. Narasimha has appeared for the writ

petitioners, the students, who prayed for the

enforcement of UGC guidelines dated 06.07.2020. He

submits that majority of students want examination to

be held. He submits that under­Graduate Degree is

minimum qualification for various employment and the

final examination when takes place then students are

granted the Degree which is most relevant for grading

the students. Final evaluation for the students who

want to go abroad is necessary. The students must

have chance to improve in final year examination.

Shri Narasimha submits that University has time to

cope with the health situation. He submits that in

the pandemic life has to go on, thus, methods have to

be found. The methodology of evaluation is a part of

standard of education which is in the domain of the

UGC. He submits that conduct of final examination is

necessary.

50

39. Shri Vinay Navare, learned senior counsel who

appears for the writ petitioners who have challenged

the decision of the State Disaster Management

Authority of the State of Maharashtra and have prayed

for enforcement of the guidelines dated 06.07.2020

submits that holding of examination is legal, ethical

and academic. He submits that the students saying for

conferring the Degree without holding examination

should not be heard under Article 32. The State

Government cannot say that examination be not held.

He submits that earlier in the State of Maharashtra

Vice Chancellors have taken a decision to hold final

year examination which was made a political issue by

Yuva Sena. He submits that there is no power in the

State in deciding that Degree be given without

examination. He submits that the State has no power

to issue any direction not to conduct any

examination. Shri Navare, however, has fairly

submitted that the date 30.09.2020 has to be

moderated in the peculiar situation of a State. 51

40. Shri Tushar Mehta, learned Solicitor General

appearing for University Grants Commission submits

that judicial review of the guidelines of the UGC

dated 06.07.2020 is permissible only on limited

grounds. He submits that there are no sufficient

grounds to grant judicial review to the decision of

the UGC. He has referred to UGC guidelines dated

29.04.2020 and submitted that the schedule of

conducting of examination was already mentioned in

the guidelines. He submitted that the State level

committee founded by the Minister, Higher Technical

Education for Government of Maharashtra has submitted

report dated 06.05.2020 where it was recommended that

final examination be held. He submits that the State

has also accepted the above recommendations.

Referring to 06.07.2020 decision of Ministry of Home

Affairs, Shri Mehta submits that if authority has

power to do something, the form is not material. He

submits that under UGC guidelines dated 06.07.2020 52

only final year examinations have to be held which is

a reasonable recommendation and there being option of

offline, online and hybrid mode, the reasonable

flexibility was provided, sufficient time was also

given in the guidelines dated 06.07.2020 for

conducting the examination and under the guidelines

an opportunity was given to any student who fails to

appear, to sit in special examination even after

30.09.2020 which was reasonable and protected the

interest of the students. He submits that the order

dated 06.07.2020 issued by Ministry of Human Resource

Development, guidelines for conducting examination

were issued after application of mind and due

consideration of ground situation. The standard

operating procedures for conducting examination were

vetted by the Ministry of Family Health and Welfare.

The date 30.09.2020 was fixed for completion of

examination in the larger interest of the students to

take care of the future prospects of the students.

Referring to the order dated 29.07.2020 issued by the 53

Ministry of Home Affairs, Government of India and the

guidelines providing that any area outside the

containment zone, School, Colleges and Coaching

Institutions shall remain closed till 31.08.2020, he

submit that it could not come in the way of

conducting examination since the Ministry of Home

Affairs have already granted exemption for

conducting the examination despite the closure of

Schools, Colleges and Coaching Institutions. Shri

Mehta submits that there are large number of

Universities in the entire country who have conducted

their examinations and several Universities are

proceeding with the holding of the examination. It is

only the few States who have not conducted the

examination. Shri Mehta submits that University

Grants Act is referable to Entry 66 List I of 7 th

Schedule and no contrary decision of the State can

stand in its way. Referring to Regulations, 2003,

Shri Mehta submits that as per Regulations which are

statutory, the Universities are obliged to adopt the 54

guidelines issued by the UGC. Referring to the

decisions of Ministry of Home Affairs, Shri Mehta

submits that in the case of National disaster, Centre

has taken care of and in the given set of facts the

State can give suggestion to change the schedule i.e.

change the deadline to hold the examination i.e.

30.09.2020. He submits that deadline was issued in

the interest of the students.

41. For the Union of India Shri S.V. Raju, learned

Additional Solicitor General has appeared. Shri Raju

submits that under the guidelines issued along with

the order of the Government of India, Ministry of

Home Affairs which prohibited opening of Schools,

Colleges and Institutions till 31.08.2020, there is

no prohibition in any manner in conduct of the

examination. He submits that closure of the Schools,

Colleges and Institutions has nothing to do with the

conduct of the examinations and normally final

examinations are conducted only after teaching is 55

over i.e. after Colleges are closed. He further

submitted that it is not necessary that the

examination must be held where teaching is imparted

or where attendance took place. It can also take

place in hall unconnected with the Schools, Colleges

and Institutions where the teaching was imparted. He

submits that the Ministry of Home Affairs has duly

examined the request of Ministry of Human Resource

Development and respondent on 06.07.2020, taking into

consideration the academic interest of large number

of students it was decided to permit the conduct of

final examinations.

42. Learned counsel for the parties have referred to

and relied on several judgments of this Court which

shall be referred to while considering the

submissions of the parties.

56

43. We have considered the submissions of the learned

counsel for the parties and perused the material on

record.

44. From the submissions of the parties following

issues arise for consideration:

(1) Whether the revised guidelines dated

06.07.2020 requiring the Universities to

complete terminal semester/final year

examination by 30.09.2020 is beyond the

domain of the UGC and does not relate to

“co­ordination and determination of

standards in institution of higher

education”?

(2) Whether the revised guidelines dated

06.07.2020 issued by the UGC are non­

statutory, advisory only and contrary to

earlier guidelines dated 29.04.2020? 57

(3) Whether the UGC guidelines dated

06.07.2020 are violative of Article 14 of

the Constitution of India?

(4) Whether the UGC guidelines dated

06.07.2020 are violative of Article 21 of

the Constitution of India and the guidelines

have been issued disregarding the pandemic

COVID­19?

(5) Whether the guidelines of the UGC dated

06.07.2020 are liable to be set aside on the

ground of non­compliance of Section 12 of

UGC Act, 1956?

(6) Whether the State and State’s Disaster

Management Authority in exercise of

jurisdiction under Disaster Management Act,

2005 can take a decision not to hold

examination by 30.09.2020 disregarding the

direction in the UGC guidelines dated

06.07.2020?

58

(7) Whether the State or State Disaster

Management Authority, in exercise of

jurisdiction under Act, 2005, can take a

decision to award degrees to final

year/final semester students by promoting

them on the basis of criteria of assessment

formulated by the State/Universities on the

result of previous semesters/exams and

internal assessment of final year/terminal

semester in disregard to the guidelines

dated 06.07.2020 which require holding of

examination of final year/terminal semester

by 30.09.2020?

Issue No.1

45. We, in the present batch of cases are concerned

with examinations by the Universities and the degrees

to be conferred to graduates and postgraduates. A

University is an institution of higher education.

Education plays a very significant role in 59

development of personality of an individual as well

as in the progress and development of a country.

After independence of our country, looking to the

pivotal role of higher education, the Government of

India constituted a Commission known as “University

Education Commission” with Dr. S. Radhakrishnan as

Chairman. The Commission submitted a report, which

mentioned “Universities as the organs of

Civilisation”. The report emphasised on the need for

higher standards in Universities dealing with

standards of teaching and examinations. The

Commission recorded its views in the following

words:­

“The need for High Standards.

Introduction ­ It is the primary duty of a university to maintain the highest standards of its teaching and examinations. A university is a place of higher education where the personality and capacities of the students are developed to the utmost by teachers who should themselves be at work at the frontiers of knowledge in their respective fields. The success of a university is to be judged as much by the type of graduate it turns out as by the 60

amount and quality of research contributed by its teachers and research students. It must be clearly recognized that there is no conflict involved between the twofold function of a university to educate its members and to advance the frontiers of knowledge ­ the two functions are, in fact, complementary. Unless high standards of teaching and examinations are maintained, research will suffer, since research can continue uninterruptedly only if there is a regular supply of graduates well prepared by general education for specialized research work. On the other hand, if research is neglected by teachers, their teaching will lack vitality and will rapidly become stale. A degree must always be what a university makes it by the kind of teaching it imparts and the type of intellectual and social life it provides for its members. If our universities are to be the makers of future leaders of thought and action in the country, as they should be, our degrees must connote a high standard of scholarly achievement in our graduates.”

46. The Parliament enacted the University Grants

Commission Act, 1956 (hereinafter referred to as “UGC

Act, 1956”) to make provision for the coordination

and determination of standards in Universities and

for that purpose to establish a University Grants

Commission. The UGC Act, 1956 is referable to Entry 61

66 of List I of Seventh Schedule of the Constitution

which provides as under:­

“66. Co­ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”

47. The education including Universities both in

Government of India Act, 1935 and the Constitution of

India was a State subject. Entry 11 in the State

List prior to Constitution (Forty­second Amendment)

Act, 1976 provided:­

“………Education including Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III”.

48. By Constitution (Forty­second Amendment) Act,

1976 w.e.f. 03.01.1977, Entry 11 from List II was

omitted and was transferred and combined with subject

of Entry 25 of List III. Entry 25 List III as after

amendment by Constitution (Forty­second Amendment)

Act, 1976 is to the following effect:­ 62

“25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I;

vocational and technical training of labour.”

49. Education including university education, thus,

is now a concurrent subject where both State

legislature as well as Parliament have legislative

competence. Entry 11 of List II as existed prior to

Constitution (Forty­second Amendment) Act, 1976 as

well as Entry 25 of List III is subject to the

provisions of Entry 66 of List I, which is the

Constitutional Scheme delineated by Seventh Schedule

of the Constitution of India. The inter­play with

regard to legislation by State referable to earlier

Entry 11 of List II as well as Entry 25 of List III

with that of Entry 66 of List I came for

consideration before this Court in several cases.

The Constitution Bench of this Court in Gujarat

University and Anr. Vs. Shri Krishna Ranganath

Mudholkar and Ors., AIR 1963 SC 703 laid down that 63

although there may be overlapping between a State

Legislation referable to Entry 11 of List II and

Parliament legislation referable to Entry 66 List I

but to the extent of overlapping the power conferred

by Item 66 of List I must prevail over power of the

State. In paragraph 23 of the judgment, the

Constitution Bench Laid down:­

“……………………………Use of the expression "subject to" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. In Hingir­Rampur Coal Co. Ltd. Vs. State of Orissa [1961] 2 SCR 537: (AIR 1961 SC 459), this Court in considering the import of the expression "subject to" used in an entry in List II, in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to" in an entry in List II, the power is taken away from the State Legislature. Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted…………………………” 64

50. A Constitution Bench of this Court in Dr. Preeti

Srivastava and Anr. Vs. State of M.P. and Ors.,

(1999) 7 SCC 120 had occasion to consider the inter­

play between Entry 66 of List I and that of Entry 25

of List III. The Constitution Bench had occasion to

consider a Government order dated 11.10.1994 issued

by the State of Uttar Pradesh where for admission in

Post Graduate Medical Entrance Examination percentage

of 45% marks was fixed for the general category

candidates, cut­off for reserved category candidates,

i.e., Scheduled Castes, Scheduled Tribes etc., was

fixed at 35% and thereafter, by another G.O. dated

31.8.1995 the State of Uttar Pradesh completely did

away with a cut­off percentage of marks in respect of

the reserved category candidates, which was

challenged before this Court. This Court held that

while laying down minimum qualifying marks for

admission to the Post Graduate Courses, it was not

open to the State Government to say that there will

be no minimum qualifying marks for the reserved 65

category candidates in Dr. Sadhna Devi and Ors. Vs.

State of U.P. and Ors., (1997) 3 SCC 90. The State of

U.P. issued an ordinance on 15.01.1997 revising the

minimum qualifying marks for the reserved category

candidates from 35% to 20%, which ordinance was

challenged before this Court by means of writ

petition under Article 32. Similarly, State of

Madhya Pradesh also by Government Order directed the

minimum qualifying marks for the reserved category

candidates be fixed 20% for Scheduled Casts and 15%

for Scheduled Tribes, which was also under challenge.

This court in the above context had occasion to

consider the Regulations framed under the Medical

Council Act, 1956, a Parliamentary legislation, which

Regulation provided standard of qualification for

admission in a medical course. There being conflict

between the criteria fixed by the State of U.P. and

State of M.P. and those fixed by Regulations under

Indian Medical Council Act, the controversy was 66

finally determined by the Constitution Bench, in

paragraph 35, following was laid down:­

“35. The legislative competence of the Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force. Entry 11 of List­II gave to the States an exclusive power to legislate on

"education including universities subject to the provisions of retries 63, 64, 65 and 66 of List­I and Entry 25 of List­ III".

Entry 11 of List­II was deleted and Entry 25 of List­III was amended with effect from 3­1­1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:

“25. Education, including technical education, medical

education and universities, subject to the provisions of entries 63, 64, 65 and 66 list­I: vocational and technical training of labour.”

Entry 25 is subject, inter alia, to Entry 66 of List­I. Entry 66 of List­I is as follows :

“66. Co­ordination and determination of standards in 67

institutions for higher education or research and scientific and technical institutions.”

Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List­I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co­ordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in intuitions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List­ I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.” 68

51. Constitution Bench had also occasion to elaborate

on different aspects of “standards of education”.

This Court held that the standards of examination is

also one of the relevant factor in standards of

education. In paragraph 36, following has been laid

down:­

“36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List­III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List­I. For example, a State may, for admission to the post­graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List­I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse affect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are :

(1) The calibre of the teaching staff;

69 (2) A proper syllabus designed to achieve a high level of education in the given span of time;

(3) The student­teacher ratio;

(4) The ratio between the students and the hospital beds available to each student;

(5) The calibre of the students admitted to the institution;

(6) Equipment and laboratory

facilities, or hospital facilities for training in the case of medical colleges;

(7) Adequate accommodation for the college and the attached hospital; and

(8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.”

52. A Three Judge Bench of this Court had occasion to

consider all legislative entries pertaining to

education including University education in Professor

Yashpal and Anr. Vs. State of Chhattisgarh and Ors.,

(2005) 5 SCC 420. This court laid down following in

paragraphs 33, 34 and 35:­ 70

“33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co­ ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.

34. In order to achieve the aforesaid purpose, the Parliament has enacted the University Grants Commission Act. First para of the Statement of Objects and Reasons of the University Grants Commission Act, 1956 (for short "UGC Act") is illustrative and consequently it is being reproduced below :

"The Constitution of India vests Parliament with exclusive authority in regard to 'co­ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'. It is 71

obvious that neither co­ordination nor determination of standards is possible unless the Central Government has some voice in the determination of standards of teaching and examination in Universities, both old and new. It is also necessary to ensure that the available resources are utilized to the best possible effect. The problem has become more acute recently on account of the tendency to multiply Universities. The need for a properly constituted Commission for determining and allocating to Universities funds made available by the Central Government has also become more urgent on this account.”

35. In the second para it is said that the Commission will also have the power to recommend to any University the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such recommendation. The Commission will act as an expert body to advise the Central Government on problems connected with the co­ ordination of facilities and maintenance of standards in Universities.”

53. In Maa Vaishno Devi Mahila Mahavidyalaya Vs.

State of Uttar Pradesh and Ors., (2013) 2 SCC 617, 72

this Court had occasion to consider the provisions of

National Council for Teacher Education Act, 1993 and

the role of the State and Universities in the above

regard. In paragraph 59, this court held that NCTE

is constituted under the Central Act with the

responsibility of maintaining standard of education

hence the State and Universities cannot lay down any

guideline or policy which would be in conflict with

the Central statute or the standards laid down by the

Central body. In paragraph 59, following has been

laid down:­

“59. The above enunciated principles clearly show that the Council is the authority constituted under the Central Act with the responsibility of maintaining education of standards and judging upon the infra­structure and facilities available for imparting such professional education. Its opinion is of utmost importance and shall take precedence over the views of the State as well as that of the University. The concerned Department of the State and the affiliating University have a role to play but it is limited in its application. They cannot lay down any guideline or policy which would be in conflict with the Central statute or the standards laid down by the Central body. State can frame its 73

policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the Central body. In the present cases, there is not much conflict on this issue, but it needs to be clarified that while the State grants its approval, and University its affiliation, for increased intake of seats or commencement of a new course/college, its directions should not offend and be repugnant to what has been laid down in the conditions for approval granted by the Central authority or Council. What is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of imparting of education properly and ensuring maintenance of proper standards of education, examination and infrastructure for betterment of educational system. Only if all these authorities work in a coordinated manner and with cooperation, will they be able to achieve the very object for which all these entities exist.”

54. In another judgment of this Court in University

Grants Commission and Anr. Vs. Neha Anil Bobde

(Gadekar), (2013) 10 SCC 519, the qualifying criteria

fixed by the UGC came for consideration. Bombay High

Court had ruled out that UGC lacked the competence to

fix the aggregate marks as the final qualifying

criteria after the candidates obtained the minimum 74

marks prescribed before the declaration of result of

N.E.T. examination. The judgment of the Bombay High

Court was in appeal before this Court where this

Court categorically laid down that UGC being an

expert body is entrusted with duty to take such steps

as it may think fit for the determination and

maintenance of standards of teaching, examination and

research in the University. In paragraph 22,

following was laid down :­

“22. We have elaborately referred to various statutory provisions which would clearly indicate that the UGC as an expert body has been entrusted by UGC Act the general duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in Universities. It is also duty bound to perform such functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India. The UGC has also got the power to define the qualification that should ordinarily be required for any person to be appointed to the teaching staff of the University and to regulate the maintenance of standards and coordination of work and faculties in the Universities.” 75

55. This Court further held that in academic matters

unless there is a clear statutory violation, this

Court shall keep their hands off since the issues

fall within the domain of the experts. In paragraph

31, following was laid down:­

“31. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam v. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal v. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for 76

lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India.”

56. Now, we come to the Revised Guidelines dated

06.07.2020, which is under challenge before us. The

Guidelines dated 06.07.2020 were issued in

continuation to earlier Guidelines dated 29.04.2020.

The Guidelines dated 06.07.2020 provided that

Universities are required to complete the examination

by the end of September, 2020 in offline (pen and

paper)/online / blended (offline and online mode) all

terminal semester/final year examinations 2020. The

Guidelines dated 06.07.2020 intended that it is only

after holding of terminal semester/final year

examination, Universities may proceed to grant 77

degrees. The challenge to Guidelines is on the

ground that Guidelines are beyond the domain of UGC

and does not relate to “co­ordination and

determination of standards in institution of higher

education”. Undoubtedly, the UGC Act has been

enacted in reference to Entry 66 List I where the

preamble of the Act provides:­

“An Act to make provision for the co­ ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.”

57. Section 12 which enumerates the functions of the

Commission provides that it shall be the general duty

of the Commission to take, in consultation with the

Universities or other bodies concerned, all such

steps as it may think fit for the promotion and co­

ordination of University education and for the

determination and maintenance of standards of

teaching, examination and research in Universities.

The use of expression “examination” in Section 12 78

itself makes it clear that steps taken by the UGC

under Section 12 may relate to the “examination as

well”. In Professor Yashpal (supra) in paragraph 32,

this Court has held that the standards of education

in an institution depends on various factors, one of

which includes “the standard of examinations held

including the manner in which the papers are set and

examined”.

58. The sheet anchor of the argument as stressed by

Shri Arvind P. Datar is the Constitution Bench

judgment of this Court in Modern Dental College and

Research Centre and Ors. Vs. State of Madhya Pradesh

and Ors., (2016) 7 SCC 353. Learned senior counsel

has relied on observation of this Court in paragraph

101. Relevant observation made in paragraph 101 is

as follows:­

“101. To our mind, Entry 66 in List I is a specific Entry having a very specific and limited scope. It deals with co­ ordination and determination of standards in institution of higher education or 79

research as well as scientific and technical institutions. The words “co­ ordination and determination of standards” would mean laying down the said standards. Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc……..”

59. To comprehend the import of the above observation

made by this Court, we need to look into the issue,

which has arisen for consideration in above case. The

enactment, which came for consideration before this

Court in the above case was “Niji Vyavasayik Shikshan

Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka

Nirdharan) Adhiniyam, 2007”. The aforesaid Act, 2007

as well as the Madhya Pradesh Private Medical and

Dental Postgraduate Course Entrance Examination

Rules, 2009 came to be challenged before the High

Court and the High court upheld the provisions of the

Act and Rules, which came to be questioned before 80

this Court in Modern Dental College & Research Centre

(supra). The Constitution Bench itself in paragraph

83 of the judgment has noted that the State

enactments does not run foul of any of the existing

central law. Paragraph 83 of the judgment needs to

be quoted, which is to the following effect:­

“83. The enactment in question does not run foul of any of the existing Central laws. As far as the introduction of a CET at a national level is concerned, the same was not enforced during the period of operation of the State statute. In any event, there being no Regulations regarding fixation or determination of fees of these institutions to ensure that the same does not allow commercialisation or profiteering, the State Legislature was well competent to enact provisions regarding the same.”

60. The issue, which was raised before the

Constitution Bench was whether the subject matter of

admissions was covered exclusively by Entry 66 of

List I, thereby the States had no legislative

competence to deal with the subject of admissions or

determination of fee to be charged by professional 81

educational institutions. The said issue has been

noticed in paragraph 98 in following words:­

“98. The next issue to be considered is whether the subject­matter of admissions was covered exclusively by List I Entry 66, thereby the States having no legislative competence whatsoever to deal with the subject of admissions or determination of fee to be charged by professional educational institutions.”

61. In paragraph 101, the Constitution Bench repelled

the above submission and in the above context the

observations were made “however, that would not

include conducting of examination, etc. and admission

of students to such institutions or prescribing the

fee in these institutions of higher education, etc.”

62. The Constitution Bench in paragraph 101 has used

the expression “not include conducting of examination

etc.” In the present case, there is no claim on

behalf of the UGC that it is the UGC which shall

conduct the examination of the graduate and 82

postgraduate students. The examinations are to be

conducted by the respective Universities only. The

above observations made by Constitution Bench in

paragraph 101 as relied by learned senior counsel for

petitioner, cannot be treated to be laying down any

preposition that University Grants Commission has no

competence to lay down any standards with regard to

examination. We, thus, are of the considered opinion

that the Guidelines dated 06.07.2020 are not beyond

the domain of the UGC and they relate to co­

ordination and determination of standards in

institutions of higher education.

Issue No.2

63. The issue consists of two parts, i.e., (i)

whether the Revised Guidelines dated 06.07.2020 are

non­statutory and advisory only and (ii) the

Guidelines dated 06.07.2020 are contrary to earlier

Guidelines dated 29.04.2020. We may take up the 83

second part first. The Guidelines dated 29.04.2020

were issued with heading “UGC Guidelines on

Examinations and Academic Calendar in view of COVID­

19 pandemic and subsequent lockdown”. With regard to

examination of 2019­2020, several Universities have

conducted examinations full or partial, some of the

Universities were yet to commence their examination.

At the outbreak of pandemic COVID­19, the Government

of India, Ministry of Home Affairs issued various

orders and had taken measures to prevent its spread

across the country including lockdown where several

activities were prohibited due to the situation as

developed from the last week of March, 2020. Neither

any teaching could be done in the colleges/

Universities nor any examination could be held for

the months together. Since the examinations could

not be held in the month of March to June, 2020, by

which period usually the examinations of all

Universities are completed and results are declared,

UGC came with Guidelines on Examinations and Academic 84

Calendar for the Universities. The Guidelines begins

with following introduction:­

“Introduction The whole world, including India, is passing through unprecedented difficult times due to the outbreak of COVID­19 pandemic. As all universities and colleges are closed due to national lockdown, the teaching – learning process and research activities have been badly disrupted. The schedule of Terminal Semester examinations has also got disturbed. In such scenario, it is joint responsibility of all the stakeholders to manage multiple key issues relating to academic activities in the institutions. While it is crucial to follow measures taken by the Government to contain the spread of COVID­19, it is also important to continue the educational process making effective use of technology and other available options. Future may have many uncertainties but difficult times demand quick appropriate decisions. We must be optimistic that we can reinvent work again and engage the students in effective and constructive ways. The University Grants Commission (UGC) has been engaged with this issue and contemplating measures to face the challenge of safeguarding the interests of the academic fraternity in general and students in particular.

Confronted with vital issues of examinations and academic calendar, UGC constituted an Expert Committee to deliberate on these issues and make recommendations to address them.” 85

64. The University Grants Commission has constituted

an Expert Committee and it was on the basis of report

submitted by Expert Committee Guidelines dated

29.04.2020 was issued. It is relevant to extract

following portion of the guidelines:­

“1. Maintaining the sanctity of academic expectations and integrity of examination process, the universities may adopt alternative and simplified modes and methods of examinations to complete the process in shorter period of time in compliance with CBCS requirements as prescribed by UGC from time to time. These may include MCQ/ OMR based examinations, Open Book Examination, Open Choices, assignment/ presentation­based assessments etc.

2. The universities may adopt efficient and innovative modes of examinations by reducing the time from 3 hours to 2 hours assigned to each examination, if need arises but without compromising the quality, so that the process may be completed in multiple shifts and, at the same time, sanctity to evaluate the performance of a student is also maintained.

3. The universities may conduct Terminal / Intermediate Semester / Year examinations in offline / online mode, as per their Ordinances/ Rules and 86

Regulations, Scheme of Examinations, observing the guidelines of “social distancing” and keeping in view the support system available with them and ensuring fair opportunity to all students.

4. Terminal semester / year examinations for PG/ UG courses/ programmes may be conducted by universities as suggested in the academic calendar keeping in mind the protocols of “social distancing”.

5. For intermediate semester/year students, the universities may conduct examinations, after making a comprehensive assessment of their level of preparedness, residential status of the students, status of COVID­19 pandemic spread in different region / state and other factors.

In case the situation does not appear to be normal in view of COVID­19, in order to maintain “social distancing”, safety and health of the students, grading of the students could be composite of 50% marks on the basis of the pattern of internal evaluation adopted by the universities and the remaining 50% marks can be awarded on the basis of performance in previous semester only (if available). The internal evaluation can be continuous evaluation, prelims, mid­semester, internal assignments or whatever name is given for student progression.

In the situations where previous semester or previous year marks are not available, particularly in the first year of annual pattern of examinations, 100% 87

evaluation may be done on the basis of internal evaluation.

If the student wishes to improve the grades, he/she may appear in special exams for such subjects during next semester.

This provision for intermediate semester examinations is only for the current academic session (2019­20) in view of COVID­19 pandemic, while maintaining safety and health of all the stakeholders and sanctity and quality of examinations.”

65. The Guidelines also contains academic calendar

suggested for the academic session 2019­2020 and

dates for conduct of examinations were also suggested

as 01.07.2020 to 31.07.2020. It is true that

Guidelines mentioned that Guidelines are advisory in

nature and each University may chart out its plan of

action taking into consideration the issues

pertaining to pandemic COVID­19. A reading of the

Guidelines indicate that ample latitude was given to

the Universities to conduct terminal/intermediate/

semester year examinations in offline and online

mode. The Guidelines, however, cannot be read to 88

mean that Guidelines dated 29.04.2020 left it to the

wisdom of the Universities to either conduct terminal

semester/final year examinations or not to conduct,

which is clear from clauses 4 and 5 under the heading

“Examinations”. Clause 4 specifically provides that

terminal semester /final year examinations for PG/ UG

courses/ programmes may be conducted by universities

as suggested in the academic calendar keeping in mind

the protocols of “social distancing”. The academic

calendar, which is part of the Guidelines suggested

the date for start of the examinations as 01.07.2020.

When we read clause 5, the difference between clause

4 and 5 is clear. With regard to intermediate

semester /year students there is express mention that

“In case the situation does not appear to be normal

in view of COVID­19, grading of the students could be

composite of 50% marks on the basis of the pattern of

internal evaluation adopted by the universities and

the remaining 50% marks can be awarded on the basis

of performance in previous semester.” But this 89

option is not mentioned in clause 4 of the

Guidelines, which referred to terminal semester/final

year examinations. The Guidelines dated 29.04.2020

was issued for a purpose and object with latitude to

the Universities to chart their own plan/course but

the argument cannot be accepted that Universities

were not to follow the Guidelines on the pretext that

it uses the expression “advisory”. The Revised

Guidelines dated 06.07.2020 were issued looking to

the situation that COVID­19 cases are still rising

and likely to increase further and as per academic

calendar in the Guidelines dated 29.04.2020, the

examinations were to complete by 31.07.2020. The UGC

requested the Expert Committee to revisit the

Guidelines. The Guidelines dated 06.07.2020 in fact

grant further time requiring the completion of

examination by 30.09.2020. When we look into the

substance of the Guidelines dated 29.04.2020 and

Revised Guidelines dated 06.07.2020, it is clear that

Guidelines dated 06.07.2020 are in continuation to 90

the earlier Guidelines and not contrary to the

earlier Guidelines. We have to look into the

substance of the Guidelines and find out the intent

and object of the Guidelines. The Guidelines were

issued with the object that a uniform academic

calendar be followed by all the Universities and

final terminal semester/final year examinations be

held. With regard to intermediate semester/year

examination, the earlier UGC Guidelines dated

29.04.2020 have been continued even in the Revised

Guidelines dated 06.07.2020. We, thus, do not accept

the submission of petitioners that Guidelines dated

06.07.2020 are contrary to the earlier Guidelines.

66. Now, coming to the first part of the issue that

the Guidelines are non­statutory and advisory only,

it is the case of both the parties that Guidelines

have been issued by the UGC in exercise of power

under Section 12. Section 12 of the Act provides

that it shall be the general duty of the Commission 91

to take all such steps as it may think fit for the

promotion and co­ordination of University education

and for the determination and maintenance of

standards of teaching, examination and research in

Universities. The words “all such steps” are of wide

import. The steps referred to in Section 12 may

include issuance of guidelines, directions, circulars

etc. The Guidelines dated 06.07.2020 has to be

treated to have been issued in exercise of statutory

powers vested in the Commission under Section 12.

Guidelines issued in exercise of statutory powers,

thus, cannot be said to be non­statutory. There is

one more reason to hold the Guidelines have statutory

force. The University Grants Commission, in exercise

of power under Section 26 sub­section (1) of the Act,

1956 have made the Regulations namely, “the

UGC(Minimum Standards of Instruction for the Grant of

the Master's Degree through Formal

Education)Regulations, 2003”, on which both learned

counsel for the petitioners as well as learned 92

counsel for the UGC have placed reliance. Regulation

6, which deals with “examination and evaluation”

contains following regulation as Regulation 6.1:­

“6.1 The university shall adopt the guidelines issued by the UGC and other statutory bodies concerned from time to time in respect of conduct of examinations.“

67. The statutory Regulation, 2003 thus,

categorically requires Universities to adopt the

Guidelines issued by the UGC, hence, it is the

statutory duty of the Universities to adopt the

guidelines issued by the UGC. It is the statutory

obligation of the Universities to adopt the

Guidelines and the Guidelines cannot be ignored by

terming it as non­statutory or advisory.

Issue No.3

68. The revised guidelines dated 06.07.2020 have been

challenged claiming that it violates Article 14 of

the Constitution. It is submitted that the UGC 93

guidelines discriminate between the students of Final

year and First/Second year. The UGC guidelines have

been termed as unreasonable and arbitrary. It is

further submitted that impugned guidelines failed the

test of Article 14 because they apply throughout

India and one fixed date i.e. 30th September, 2020,

irrespective of the conditions prevailing in the

States/Universities, issuing one deadline results in

unequals being treated equally.

69. The submission is that the impugned guidelines

discriminate between the students of First year and

Final year and carves out one class of students from

homogeneous class; The impugned guidelines are in

continuation to earlier guidelines dated 29.04.2020

and the guidelines dated 29.04.2020 dealt with

terminal semester/ final year examination in clause

four and for intermediate semester/year students in

clause five.

94

70. The earlier guidelines provided that the

examination may be conducted, however, an option was

given with regard to intermediate/year students for

their promotion on the basis of internal assessment

and performance in the previous semesters. Holding of

examination for the Final year students was made

necessary by the impugned guidelines. The Final

year/terminal semesters examinations are important

because the learning process is a dynamic interaction

where the only way to figure out what students know

is to seek evidence of their knowledge and to

evaluate it. Performance in examination especially

Final year/terminal semester examination are

reflection of competence of the students. Terminal

semester/Final year examination also provides an

opportunity to the students to improve upon their

overall score/marks which are very crucial for

academic excellence and opportunities of employment.

Final year/terminal semester examination of under­

Graduate or post­Graduate is an opportunity for 95

student to show his optimum calibre which pave his

future career both in academics and employment. We do

not find any unreasonableness or arbitrariness in the

revised guidelines of University Grants Commission

dated 06.07.2020 which require all Universities/

Collages to conduct at least the final year/terminal

semester examination.

71. The differentiation made by revised guidelines

to hold Final year/ Terminal semester examination has

a rational basis and there is an intelligible

differentia between the student of Final

year/Terminal semester and other students. We thus

reject the challenge on the ground that there is any

hostile discrimination between the students of Final

year/Terminal semester and other students.

72. The further submission that the guidelines

failed the test of Article 14 because they apply

throughout India and being one fixed date i.e. 96

30.09.2020 irrespective of the conditions prevailing

in the individual States/Universities also cannot be

accepted. Even the earlier guidelines dated

29.04.2020 provided for an academic calendar which

mentioned 01.07.2020 to 15.07.2020 for conduct of

Terminal semester/Final year examination and

16.07.2020 to 31.07.2020 for Intermediate

semester/year examination. When the academic calendar

is set, fixed dates are always given for uniformity.

The UGC had rightly fixed a date for completion of

the Terminal semester/Final year examination

throughout the country to maintain uniformity in the

academic calendar.

73. The students who look forward for admission in

higher classes or take employment require final

degree for their career prospect and to maintain

uniformity in dates by which final examinations are

over is with the object of students welfare and for

their career and it cannot be said that since uniform 97

date has been fixed by which Terminal semester/ Final

year examination are to be completed, Article 14 has

been violated.

74. Both, the earlier guidelines as well as revised

guidelines have taken due notice of the prevailing

situation of Covid­19 and it cannot be said that the

expert body is unaware of Pandemic spread throughout

the Country. The criticism of guidelines that they

are unreasonable does not inspire any confidence.

Following features in the revised guidelines clearly

indicate that expert body took measures in the

interest of the students and their academic career: ­

(i) The academic calendar provided for in the earlier

guidelines contemplated conduct of examination from

01.07.2020 to 31.07.2020. The revised guidelines

noticed ­ “The number of covid cases are still rising

and likely to increase further…”. The revised

guidelines has granted further time for completion of

examination till end of September, 2020, which was a 98

step to facilitate Universities and Colleges to

complete their examination which was a reasonable

step in wake of the Pandemic.

(ii) The guidelines made the conduct of examination

flexible by providing three modes of examination:

(a) Offline (Pen and Paper)

(b) Online

(c) Blended (Online + Offline)

(iii) The revised guidelines also made a provision

of examination through special chance in case a

student of Terminal semester/Final year is unable

to appear in the examination due to any reason.

75. The provision for giving special chance to appear

in examination is also in the interest of the

students to protect those students who due to any

reason are unable to appear in the examination. The

above measures taken in the revised guidelines are

reasonable and the criticism of the guidelines that 99

they are unreasonable and manifestly arbitrary are

without any substance. We thus do not find revised

guidelines to be violative of Article 14 of the

Constitution of India.

ISSUE NO.4

76. The claim of the learned counsel for the

petitioner is that compelling attendance of the

students by holding physical examination in the

present situation of the Pandemic is a violation of

the ‘Right to Life’ under Article 21. It is

contended that lakhs of students, teaching and non­

teaching staff will be forced to risk their health

and lives of their family members in event they are

asked to participate in the Final year/ Terminal

examination. The revised guidelines have been issued

totally disregarding the graveness of the present

Pandemic of which the entire country is in its grip. 100

77. There can be no doubt that it is the duty of the

State to take care of the health of its citizens.

The various measures taken by the specified

authorities under the Disaster Management Act, 2005,

are only with the object to contain the Pandemic and

protect the health of citizens of the country. The

criticism of the revised guidelines is that it

ignores the fact that covid cases are still rising

in the different part of the country and the

guidelines had completely disregarded the health of

the students and expose the students, teachers and

non­teaching staff to the risk of contacting virus

during the course of examination.

78. It is relevant to note that the revised

guidelines were issued taking into consideration the

fact that the number of covid cases are still rising

and likely to increase further which fact has been

categorically mentioned in the beginning of the

revised guidelines itself. Further, clause 6 of the 101

revised guidelines specifically provides that every

University/Institution has to ensure that it is

prepared in all respect to carry out the academic

activity following necessary protocols, guidelines,

directions, advisories issued by the Central/ State

Government from time to time in view of Covid­19.

Clause 6 of the guidelines is as follows:­

“6. Notwithstanding the above guidelines regarding conduct of examination and commencement of next academic session, every university/institution has to ensure that it is prepared in all respects to carry out the academic activities following necessary protocols/ guidelines/ directions/ advisories issued by the Central/State Governments and MHRD/UGC from time to time, in view of COVID­19.”

79. The University Grants Commission is conscious of

increasing number of covid cases throughout the

country and as observed above, the revised

guidelines have extended the period for completion 102

of examination from 31.07.2020 to 30.09.2020 which

was only due to the reason that due to Pandemic,

Universities/ Colleges may not have been able to

hold the examination. Further specific provisions in

the guidelines that all institutions have to follow

necessary protocols, guidelines, directions,

advisories issued as measures to contain Covid­19

makes it clear that there is no intent to protect

the students, teachers, non­teaching staff from the

deadly virus.

80. It is also relevant to note that after issuance

of revised guidelines dated 06.07.2020 OM dated

06.07.2020, Ministry of Human Resource Development

(MHRD), has issued detailed guidelines for conduct

of examination which guidelines were duly vetted by

Ministry of Health and Family Welfare(MoHFW). The

guidelines for conduct of examination were

circulated by University Grants Commission vide its 103

letter dated 08.07.2020, “Standard Operating

Procedure for conduct of examination is relevant”

which is quoted as below: ­

“Standard Operating Procedure for conduct of Examination

1. The instructions, guidelines and orders issued by the Central and State Governments concerning the opening of educational institutions and safety and health should be abided by the universities and colleges. However, they may develop more stricter provisions and guidelines, if they find it necessary,

2. In case there is a restriction on movements in certain areas, admit/identity cards issued to the students should be treated as a pass for the movement of the students.

State Governments should issue instructions to all local authorities to issue movement passes to invigilators and all personnel engaged in the conduct of examination.

3. Entire examination centre floors and walls, doors, gates, should be sprayed with disinfectant.

104

4. Fresh mask and gloves to be used by exam functionaries after staff verification is done.

5. Sanitizer bottles should be arranged at the entry gate, examination rooms, staff/observer room, etc, and should be replenished regularly.

6. All liquid handwash bottles should be replenished in restrooms and entry gate whenever required.

7. Candidate Seating Area should be thoroughly sanitised (desk and chair) after every session.

8. All the washrooms should be cleaned and disinfected.

9. All door handles, staircase railing, lift buttons, etc, should be disinfected.

10. Wheelchairs, if present at the examination centres, should be disinfected.

11. All the trash bins should be cleaned.

105

12. Staff verification and self declaration as suggested below must be done as soon as they report at the centre.

a.Exam functionary must submit self declaration about health status. b.Thermo gun temperature check must be done at staff entrance point. c.If any Examination functionary fails to meet the self­declaration criteria, or thermo gun check, he/she will be asked to leave the examination centre immediately. d.Exam functionary needs to wear the mask and gloves at all the time.

13. Cleanliness and hygienic conditions as per safety and health advisories of the concerned government departments are to be maintained at all places.

14. Proper signages, symbols, posters, etc. should be displayed at appropriate place to maintain social distancing.

15. Downloading of ‘Arogya Setu’ App may be advised for every staff and 106

student of the University and College.

16. Adequate arrangements of thermal scanners, sanitisers, facemasks and hand gloves at all entry and exit points including the reception area. Wherever possible, students should be given fresh face masks by the invigilators in the examination room itself.

17. Avoid crowding at entry and exit points.

18. Opening all the gates, of entry and exit, in case HEIs have more than one gate.

19. Senior staff should monitor the entry and exit. There should be proper markings with at least 2 metre distance where students stand while waiting for opening of the college gate. Exit of students should permitted one by one only.

20. Thermal screening of students, wearing of face mask, sanitizing of hands etc. be ensured.

21. The Invigilators, while on duty, should be continuously wearing mask, and proper hand gloves.

107

22. The students should be asked to sanitize their hands before and after signing the Attendance sheet.

23. Students having symptoms of fever, cough and cold should be either made to sit in a separate room or given a chance to appear on another day.

24. Hand washing stations with facilities of liquid soap should be made available so that every student can wash her/his hand frequently.

25. Keeping in view the physical distancing, institutions should have adequate rooms capacity to meet the proper seating arrangement for examination. Minimum distance between two students should be 2 metres. Sample seating plan is annexed.

26. Adequate arrangements for safe drinking water be made on the campus.

27. Adequate supply of water in toilets and for hand washing be ensured.

28. Dustbins must be cleaned and covered properly.

108

29. Proper sanitization of buses, other transport and official and vehicles of the institution.

30. At the end of the day­ a.Used gloves and masks should be disposed only in a pedal push covered bin at the Examination Centre and outside the examination room/hall.

b.Safely dispose off all used masks and gloves discarded at the examination centres or outside the examination centre in trash bin bags at suitable place and as per standard guidelines issued by health authority.”

81. The Standard operating procedure for conduct

of examination as extracted above make it

abundantly clear that UGC, MHRD, and Ministry of

Health and Family Welfare are fully concerned

with the health of all stakeholders i.e. the

students as well as exam functionaries. 109

82. In view of the above, we are not persuaded

to accept the submissions of the petitioner that

the revised guidelines are violative of Article

21 of the Constitution.

ISSUE NO.5

83. The revised guidelines dated 06.07.2020 have

been challenged on the ground that it has been issued

in the breach of Section 12(1) of the UGC Act, 1956.

The submission is that Section 12(1) mandates that

the Commission in consultation with the Universities

and other bodies concerned shall take all such steps

as it may think fit. It is submitted that before

issuance of the revised guidelines dated 06.07.2020,

the UGC was required to consult all the Universities

and other bodies concerned. The submission is that

the expression ‘other bodies concerned’ used in

Section shall include State Disaster Management

Authority which has been constituted in each state 110

and before issuance of guidelines dated 06.07.2020,

it was obligatory for the UGC to consult the State

Disaster Management Authority. Further submission is

that the expression ‘other bodies’ may also include

health experts and UGC was required to consult health

experts before issuing the revised guidelines. The

UGC having failed to consult the Universities or

other bodies, the guidelines dated 06.07.2020 are in

breach of Section 12 and are liable to set aside on

this ground alone.

84. For appreciating the above challenge raised by

the petitioner, we need to look into the statutory

scheme as delineated by Section 12 of UGC Act, 1956.

Section 12 is part of Chapter III of UGC Act, 1956,

which deals with “Powers and functions of the

Commission”. Section 12 bears the heading “Functions

of the Commission”. Section 12 as relevant is as

follows:­ 111

“POWERS AND FUNCTIONS OF THE COMMISSION

Functions 12. It shall be the general duty of the of the Commission to take, in consultation with the Commission Universities or other bodies concerned, all such steps as it may think fit for the promotion and co­ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may

(a) inquire into the financial needs of Universities;

(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose;

(c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem 1 [necessary or appropriate for the development of such Universities or for the maintenance, or development, or both, of any specified activities of such Universities] or for any other general or specified purpose:

Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University 112

concerned, its financial needs, the standard attained by it and the national purposes which it may serve,

[(cc) allocate and disburse out of the Fund of the Commission, such grants to institution deemed to be universities in pursuance of a declaration made by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely: ­

(i) for maintenance in special cases,

(ii) for development.

(iii) for any other general or specified purpose;]

[(ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and, disbursing out of the Fund of the Commission such grants as the Commission may deem necessary.]

(d) recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation;

113 (e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be;

(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;

(g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be;

(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;

(i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;

(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or 114

as may be incidental or conducive to the discharge of the above functions.”

85. Section 12 begins with the words “it shall be the

general duty of the commission to take”,...“in

consultation with Universities or other bodies

concerned.” What is the ambit and scope of expression

‘Universities or other bodies concerned’ has fallen

for consideration in the present case. The use of

expression ‘Universities or other bodies concerned’

is for purpose and object which is clear from

subsequent enumerations of functions of the

commission in the Section itself. For example, we may

take functions of the commission as mentioned in sub­

clause (d) which provides that the Commission may

recommend to the universities any measures necessary

for the improvement of the university education and

advise the universities upon the action to be taken

for the purpose of implementation of such

recommendation. When we look into this sub­clause 115

(d), it is clear that the function enumerated in sub­

clause is only with regard to a particular university

and for discharge of function by the commission with

regard to sub­clause (d), it has to consult only the

university concerned.

86. The use of the word ‘Universities or other

bodies concerned’ in the opening part of the Section

has been with a purpose of referring the universities

or other bodies concerned for whom the function has

to be performed by. The enumerations given from

clause (a) to (j) indicate that apart from

universities the function also include advice to the

Central Government or any State Government on

allocation of any grant to the Universities or advise

Central Government or any State Government or any

Universities on any question which may be referred to

the commission by the Central Government or the State

Government. Thus, the expression ‘other bodies’ used 116

in the opening part of the Section is in reference to

other bodies apart from universities enumerated in

Section 12. The expression ‘Universities or other

bodies concerned’ used in the opening part of the

Section cannot be stretched to the meaning which is

now sought to be given by the learned counsel for the

petitioner.

87. The submission that ‘other bodies’ as used in

Section 12 should include State Disaster Management

Authority or health experts is misconceived. Section

12 never contemplated any such “bodies”. Furthermore,

the State Disaster Management Authority came into

existence only after enactment of Disaster Management

Act, 2005, no such concept was there when the UGC

Act, 1956 was enacted. The expression ‘other bodies’

cannot be expanded as contended by the learned

counsel for the petitioner. The use of the word

‘concerned’ after ‘Universities or other bodies’ has 117

specific purpose and meaning. The consultation with

the Universities or other bodies concerned was in

reference to a particular function which was

enumerated in clause (a) to (j) and it has specific

reference and “Universities” or other bodies” were

referred to in the above context. Section 12 cannot

be interpreted in a manner that for taking any

measure with regard to coordination of university

education and for determination and maintenance of

standards of teaching examination in the

Universities, the UGC should consult each and every

University of each and every State and only then,

such measures can be taken. Reading the provision in

above manner shall make the functioning of UGC

unworkable. There are more than nine hundred

Universities in the country and to require UGC to

consult more than nine hundred universities for

taking any measure will make the functioning

impossible and impractical.

118

88. Section 12 cannot be interpreted in a manner that

for taking any steps by the UGC, there is a mandatory

requirement of consultation of all the

States/Universities failing which no measures can be

taken by the University Grants Commission. Clause (j)

of Section 12 is couched in a very vide manner which

empower the commission to perform such other

functions as may be prescribed or as may be deemed

necessary by the Commission for advancing the cause

of higher education in India or as may be incidental

or conducive to the discharge of the above function.

Any function which may be deemed necessary by the

Commission can be performed. For performance of its

function by the Commission, the Commission of its own

is fully competent to take decisions, issue any

directions, guidelines, etc. The Commission may also

take assistance of any Committee of experts in

discharge of its functions for which there is no 119

prohibition in the statutory scheme. In the common

counter affidavit filed by the UGC with regard to the

guidelines dated 29.04.2020, the Commission has in

paragraph 8 of the common counter affidavit has

stated that the guidelines which contained policy

decision taken by UGC were made following the report

by the Committee under the Chairmanship of Prof.

R.C.Kuhad. Following statements have been made in the

paragraph 8: ­

“8.... It is pertinent to note that these Guidelines, which contain policy decisions taken by the UGC, were made following a report by a committee under the Chairmanship of Prof. R.C.Kuhad, Vice­Chancellor, Central University of Haryana. The said committee consisted of various experts in the field that included Vice­Chancellors of various universities, the director of the Inter University Accelerator Centre, New Delhi, and senior officers of the UGC. Therefore, the Guidelines were published “in consultation with the Universities or other bodies concerned”, as mandated by section 12 of the UGC Act..."

120

89. The revised guidelines dated 06.07.2020 was

issued after the report was received from the

Committee headed by Prof. R.C. Kuhad as has been

specifically pleaded in paragraph 10 of the common

counter affidavit in which following statement has

been made:­

“10. That, however, in June 2020, considering the evolving situation of the Covid­19 pandemic, the UGC requested the expert committee headed by Prof. R.C. Kuhad to revisit the ‘UGC Guidelines on Examinations and Academic Calendar for the Universities in View of COVID­19 Pandemic and Subsequent Lockdown’. Accordingly, the expert committee (which also included Vice­Chancellors of technical Universities and a representative of industry) did so, and submitted a report recommending that terminal semester/final year examinations would be conducted by universities/ institutions by the end of September, 2020 in offline(Pen & Paper)/ online/ blended (online + offline) mode. This report of the expert committee was deliberated and approved by the UGC in its emergent meeting held on 06.07.2020...” 121

90. The statutory scheme as delineated by Section 12

makes it clear that for the purposes of performing

its functions under the Act as enumerated in clause

(a) to (j), it is not mandatory duty of the

Commission to consult with the Universities or other

bodies concerned in all cases e.g. while allocating

and disbursing out of the fund of the Commission,

grants to the Universities as enumerated in sub­

clause (b) and (c). It is not necessary to consult

the university to whom the grant is to be allocated

and disbursed. The expression “in consultation with

the Universities or other bodies concerned” has to be

read to mean where consultation with Universities or

other bodies concerned is necessary without which the

Commission is unable to perform its functions.

91. We may further elaborate the point by referring

to certain other functions as enumerated in Section

12. Section 12 sub­clause (h) provides: ­ 122

“(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;”

92. Whether for collecting information relating to

University education in India, UGC has to consult all

900 or more Universities and whether without

consultation with the Universities, it cannot perform

its functions under Section 12(h), the answer would

be obviously that it is not necessary for UGC to

consult all the universities while collecting

information relating to University Education in

India. The expression “Universities or other bodies

concerned” has not be read in a rigid manner rather

it is flexible as per requirement of the Commission.

The residuary clause i.e. Section 12(j) cloth the

Commission to perform such other functions as may be

deemed necessary by the Commission. The guidelines

dated 29.04.2020 and 06.07.2020 have been issued

after consultation of an expert Committee headed by 123

Prof. Kuhad. The guidelines have been issued after a

report of an expert committee consisting of

academicians and experts. It cannot be said that the

Commission had no jurisdiction to issue guidelines

without consulting all the Universities in the

Country and all the States or Union Territories.

93. The UGC is empowered to perform such other

functions as may be deemed necessary by the

Commission. If the Commission felt it necessary to

issue guidelines after obtaining a report from the

expert committee, no exception can be taken to the

procedure adopted by the Commission. The guidelines

dated 29.04.2020 as well as revised guidelines dated

06.07.2020 are general in nature and not confined to

any particular university or any particular state.

Hence, it cannot be said that UGC is obliged to

consult all Universities or States before issuance of

the guidelines.

124

94. We thus, are satisfied that guidelines dated

06.07.2020 cannot be said to be violative of Section

12 of UGC Act, 1956.

Issue No.6

95. The submission which has been pressed before us

by the learned counsel for the petitioners

challenging the revised guidelines dated 06.07.2020

is that the said guidelines insofar as it directs for

holding of the final year/terminal semester

examination by 30.09.2020 does not prohibit a State

or State Disaster Management Authority in taking

appropriate decision in exercise of power under

Disaster Management Act, 2005 not to hold examination

looking to the situation in a particular State. In

this context, reference has been made to the decision

taken by the State Disaster Management Authority of

Maharashtra dated 18.06.2020 and the Government

Resolution dated 19.06.2020 by the State of 125

Maharashtra as well as the proceedings dated

13.07.2020 of the State Disaster Management Authority

of the State of Maharashtra. The submission is that

exercise of power under Disaster Management Act, 2005

shall override the UGC's guidelines directing holding

of the examination by 30.09.2020 by each

University/Colleges. For considering the above

submission we need to look into the statutory scheme

of the Disaster Management Act, 2005 and various

orders issued thereunder. The Disaster Management

Act, 2005 has been enacted to provide for the

effective management of disasters and for matters

connected therewith or incidental thereto. Section 3

provides for establishment of National Disaster

Management Authority with Prime Minister of India as

Chairperson. Section 6 provides for powers and

functions of National Authority. Section 8 provides

for constitution of National Executive Committee.

National Plan is to be drawn as per Section 11.

Section 14 provides for establishment of State 126

Disaster Management Authority. Section 14 of the Act

is as follows:

“Section 14. Establishment of State Disaster Management Authority.—(1) Every State Government shall, as soon as may be after the issue of the notification under sub­section (1) of section 3, by notification in the Official Gazette, establish a State Disaster Management Authority for the State with such name as may be specified in the notification of the State Government.

(2) A State Authority shall consist of the Chairperson and such number of other members, not exceeding nine, as may be prescribed by the State Government and, unless the rules otherwise provide, the State Authority shall consist of the following members, namely:—

(a) the Chief Minister of the State, who shall be Chairperson, ex officio;

(b) other members, not exceeding eight, to be nominated by the Chairperson of the State Authority;

(c) the Chairperson of the State Executive Committee, ex officio.

127 (3) The Chairperson of the State Authority may designate one of the members nominated under clause (b) of sub­section (2) to be the Vice­ Chairperson of the State Authority.

(4) The Chairperson of the State Executive Committee shall be the Chief Executive Officer of the State Authority, ex officio:

Provided that in the case of a Union territory having Legislative Assembly, except the Union territory of Delhi, the Chief Minister shall be the Chairperson of the Authority established under this section and in case of other Union territories, the Lieutenant Governor or the Administrator shall be the Chairperson of that Authority: Provided further that the Lieutenant Governor of the Union territory of Delhi shall be the Chairperson and the Chief Minister thereof shall be the Vice­Chairperson of the State Authority.

(5) The term of office and conditions of service of members of the State Authority shall be such as may be prescribed.” 128

96. Section 18 deals with powers and functions of

State Authority. Section 20 provides for constitution

of State Executive Committee and Section 22

enumerates functions of the State Executive

Committee. Section 38 empowers the State Government

to take measures.

97. After notifying COVID­19 as pandemic the National

Disaster Management Authority issued order dated

24.03.2020 directing the Ministries/Departments of

Government of India, State/Union Territory

Governments and State/Union Territory Authorities to

take effective measures so as to prevent the spread

of COVID­19 in the country. Guidelines and the

measures to be taken by the Ministries, State/Union

Territory were issued by the Ministry of Home

Affairs. For the purposes of this case we may notice

the order dated 30.05.2020 issued by the Government

of India, Ministry of Home Affairs in exercise of 129

powers conferred under Section 6(2)i) of the Act,

2005. The guidelines for phased reopening (Unlock I)

was issued on 30.05.2020. Paragraphs 1 and 5 of the

guidelines which are relevant are as follows:

“1. Phased re­opening of areas outside the Containment Zones

In areas outside Containment Zones, all activities will be permitted, except the following which will be allowed, with the stipulation of following Standard Operating Procedures (SOPs) to be prescribed by the Ministry of Health and Family Welfare (MoHFW), in a phased manner.

Phase I ........

Phase II

Schools, colleges, educational/training/ coaching institutions etc., will be opened

after consultations with States and UTs. State Governments/UT administrations may hold 130

consultations at the institution level with parents and other stakeholders. Based on the feedback, a decision on the re­opening of these institutions will be taken in the month of July, 2020.

MoHFW will prepare SOP in this regard, in consultation with the Central Ministries/ Departments concerned and other stakeholders, for ensuring social distancing and to contain the spread of COVID­19.

Phase III ........

5. States/Uts, based on their assessment of the situation, may prohibit certain activities outside the Containment zones, or impose such restrictions as deemed necessary.”

98. The guidelines dated 30.05.2020 were to remain in

force till 30.06.2020 during which period some of the

States have taken a decision not to hold the

examination as directed by the UGC. For the purposes 131

of this case it shall be sufficient to notice the

decision taken by the Government of Maharashtra as

well as the State Disaster Management Authority of

State of Maharashtra. State Disaster Management

Authority of Maharashtra in its meeting dated

18.06.2020 took a decision not to conduct the final

year/terminal semester examination. The Government

Resolution dated 19.06.2020 was issued by the

Government of Maharashtra where the Government

decided that taking into consideration the situation

of COVID­19 in the State of Maharashtra final year

examination of professional courses cannot be

arranged. With regard to non­professional

(traditional) courses Government resolved to declare

result by way of adopting suitable formula after

obtaining in writing from students that they intend

to get the Degree without appearing in examination.

On 18.06.2020 when the State Disaster Authority took

the decision and the Government of Maharashtra issued

Government Resolution the guidelines issued by the 132

Ministry of Home Affairs dated 30.05.2020 did not

expressly permit conduct of examination in

Schools/Colleges. In paragraph 5 of the guidelines

dated 30.05.2020 issued by the Ministry of Home

Affairs, States/Uts, based on their assessment of the

situation, were empowered to prohibit certain

activities outside the Containment Zones, or impose

such restrictions as deemed necessary. When the State

Disaster Management Authority and the State

Government (Maharashtra) took a decision not to

conduct examination, the said decision was well

within the guidelines issued by the Ministry of Home

Affairs. Further Disaster Management Authority of the

State is empowered under Section 38 to take measures

for the purpose of prevention of disaster and

mitigation. The decision taken by the State Disaster

Management Authority on 18.06.2020 as well as the

State Government's Resolution dated 19.06.2020

insofar they decided not to hold final year/terminal

semester examination by 30.09.2020 was well within 133

the jurisdiction of the said Authority. We have

noticed that guidelines of UGC dated 06.07.2020

directed all Universities/Colleges to complete their

examinations by 30.09.2020. The question is as to

whether the State Disaster Management Authority could

have taken a decision contrary to the directive of

the University Grants Commission to complete the

examination by 30.09.3030. Reliance has been placed

on Section 72 of the Disaster Management Act, 2005

which provision gives overriding effect to the

provisions of Act, 2005. Section 72 of the Act, 2005

is quoted below:

“Section 72. Act to have overriding effect.—The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

99. The Disaster Management Act, 2005 empowers the

State Disaster Management Authority as well as the 134

State Government to take decision for prevention and

mitigation of a disaster and the action taken by the

authorities under the Disaster Management Act have

been given overriding effect to achieve the purpose

and object of the Act. In case of a disaster the

priority of all authorities under the Disaster

Management Act is to immediately combat the disaster

and contain it to save human life. Saving of life of

human being is given paramount importance and the

Act, 2005 gives primacy, priority to the actions and

measures taken under the Act over inconsistency in

any other law for the time being in force. Section 72

begins with non obstante clause. This Court in State

(NCT of Delhi) vs. Sanjay, 2014(9) SCC 772 in

paragraph 63 laid down following:

“63. It is well known that a non­ obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid 135

the operation and effect of all contrary provisions. ”

100. The Kerala High Court had occasion to consider

Section 72 of the Disaster Management Act in

reference to another Central Act that is Land

Acquisition Act. The Division Bench of the Kerala

High Court (of which one of us Justice Ashok Bhushan

was also a member) laid down following in paragraph

69:

69. The Disaster Management Act, 2005 is enacted with a definite object. Various powers have been given to the different authorities, including the DDMA to achieve the objects of the Act. Various statutory plans are to be prepared for Disaster Management. In event it is to be accepted that with regard to taking any action with regard to a premises which is in occupation/possession/ownership of a private person, the authorities have first to draw proceedings under the Land Acquisition Act and then issue any order under the 2005 Act is to defeat the entire purpose and object of the 2005 Act. The legislature being well aware of the legal consequences have already engrafted Section 72 of the Act which gives overriding effect to the provisions of the 2005 Act, 136

notwithstanding anything consistent therewith contained in any other law. Section 72 of the Act is as follows:

"72. Act to have overriding effect.­The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."”

101. At this juncture, we may also notice the OM

dated 06.07.2020 issued by the Ministry of Human

Resource Development as well as the decision dated

06.07.2020 of Ministry of Home Affairs. Learned

Solicitor General appearing for the University Grants

Commission has submitted that in case of National

Disaster the decision taken by the National Disaster

Authority as well as the decision of the National

Executive Committee hold the field and no contrary

decision can be taken by a State Disaster Management

Authority or State Government. It is submitted that 137

on 06.07.2020 the Ministry of Home Affairs in a

letter to Union Higher Education Secretary,

permitted conduct of examination by Universities and

Institutions. The decision of the Ministry of Home

Affairs is placed on record which is to the following

effect:

"Press Information Bureau Government of India *****

Ministry of Home Affairs permits conduct of examinations by Universities and Institutions

New Delhi, July, 6 2020

Ministry of Home Affairs, in a letter to Union Higher Education Secretary, today permitted conduct of examinations by Universities and Institutions. The final Term Examinations are to be compulsorily conducted as per the UGC Guidelines on Examinations and Academic Calendar for the Universities; and as per the Standard Operating Procedure (SOP) approved by the Union Ministry of Health & Family Welfare.

*****” 138

102. The Ministry of Human Resource Development issued

an OM dated 06.07.2020 which is to the following

effect:

“Government of India Ministry of Human Resource Development

Department of Higher Eduction

Shastri Bhawan, New Delhi, Date the 6th July, 2020

OFFICE MEMORANDUM

Subject: Instructions for conduct of examination­ regarding.

A large number of examinations of the Universities, IIT­JEE(Mains & Advance), NEET etc are scheduled to be held in the coming months. In order to ensure safety of the 139

examinees, as also their academic interest, the following action may be taken.

1. Final Term Examinations should be compulsorily conducted as per UGC Guidelines on Examinations and Academic Calendar for the Universities dated 29.04.2020 which have been again resolved today i.e. 06th July, 2020.

2. All examination may be conducted on 30 th September, 2020.

3. Taking into consideration the academic interest of large number of students, MHA has agreed to the request of MHRD and granted exemption for the opening of educational institutions for the purpose of holding examinations/evaluation work for Final Term Examinations of the Universities/Institutions.

4. MHRD has formulated detailed SOP for conduct of examinations with precautions to be taken in view of COVID­19 situation. This has been vetted by the Ministry of Health and Family Welfare. A copy of the same is enclosed to ensure safety to all.

5. Previous instructions regarding “Work From Home” sent vide letter dated 30.06.2020 will not apply to the officers, faculty and non­ Teaching Staff who are involved in Examination/Evaluation/Admission work. 140

Sd/­ (Vidya Sagar Rai) Under Secretary to the Govt. of India.”

103. A perusal of the OM dated 06.07.2020 indicates

that the Ministry of Home Affairs has agreed to the

request of the Ministry of Human Resource Development

and granted exemption for the opening of educational

institutions for the purpose of holding examinations/

evaluation work for Final Term Examinations of the

Universities/Institutions. The said OM as well as

letter of the Ministry of Home Affairs cannot be read

to mean that it fettered the jurisdiction of the

State Authority to take a decision considering the

situation in a State with regard to conduct of

examinations. The cumulative effect of OM dated

06.07.2020 and letter dated 06.07.2020 shall be that

Government of India granted exemption for holding the

examinations which shall be treated as exception to 141

the guidelines dated 29.06.2020 issued by the

Ministry of Home Affairs where Schools, Colleges,

educational and coaching institutions were to remain

closed till 31.07.2020. The said OM and letter dated

06.07.2020 permitting holding the examinations shall

not fetter the power of the State Disaster Management

Authority to take appropriate measures to contain the

Disaster in the State. It is relevant to notice that

State Disaster Management Authority of the State of

Maharashtra held meeting on 13.07.2020 and took the

following decision:

“.........

After detailed deliberations in the meeting, the following decision was taken:­

1. As per the revised guidelines issued by the University Grants Commission on July 6, 2020, it is not possible to conduct examinations in the State in case of COVID­19. Therefore, the decision taken by the Government on June 19, 2020 regarding the final session/final year examinations of non­ professional(traditional) as well as professional courses was upheld.

142 2. The University Grants Commission should be re­requested as it is not possible to conduct the examination as per the guidelines.”

104. With regard to conduct of examinations, the

State authorities are competent to assess the

situation in a particular State regarding possibility

of holding of examinations. No State shall permit

health of its subject to be compromised that is why

overriding power has been given to the State Disaster

Management Authority and the State Government with

regard to any inconsistency with any other law for

the time being in force. We have noticed above that

there are no orders or directions in the guidelines

of the National Disaster Management Authority or

National Executive Committee fettering the powers of

the State Disaster Management Authority and a State

Government to take a decision as to whether

examinations by physical mode be permitted in 143

particular State looking to the situation in the

State. Coming to the guidelines dated 06.07.2020 of

the UGC insofar as it directs completion of final

examinations by 30.09.2020 which direction is

overridden by the decision of the State Disaster

Management Authority and State Government where it

resolved not to hold the examinations. We, thus,

conclude that direction of the University Grants

Commission in its revised guidelines dated 06.07.2020

insofar it directs the Universities and colleges to

complete the final year/terminal examinations by

30.09.2020 shall be overridden by any contrary

decision taken by a State Disaster Management

Authority or the State Government exercising power

under the Disaster Management Act, 2005. Learned

counsel appearing for the UGC has, in his submission,

submitted that UCC shall be ready to consider any

request received from any State to allow the

Universities to re­schedule the date of final

examinations and in the event any request is made to 144

the UGC the deadline for completion of the

examination can be extended by the UGC and the date

of final examinations can be rescheduled.

Issue No.7

105. As noted above, the State Disaster Management

Authority (State of Maharashtra) in its meeting dated

18.06.2020 as well as the State of Maharashtra in its

Resolution dated 19.06.2020 have resolved to promote

the students without taking the final examinations.

It is useful to refer to the Government Resolution

dated 19.06.2020, which is to the following effect:

"Government Resolution:

1. In all non­agricultural universities, deemed universities, self­financed universities and their affiliated colleges for the academic year 2019­20 for organising examinations of final session/final year of graduation/ post­ graduation classes the Universities are required to take action as per following point (1) and (2) in A:

145

(A) Non­Professional (Traditional) Courses:

1. If the students of final session/year have gone through in all earlier sessions intend to get degree certificates without appearing their examination, by way of obtaining in writing from them by way of adopting suitable formula the Universities should declare result.

2. If the students of final session/year have gone through in all earlier sessions intend to appear the examination, by way of obtaining in writing from them opportunity of appearing the examination is to be given to them. After taking into consideration the emergence of Covid­19 epidemic at local level and local situation and after discussing with the concerned District Collector & President of Disaster Eradication Authority the Universities should take suitable decision and accordingly they may declare the time table.

3. In case of the students of final year if there is any backlog, in respect of examinations of their backlog a meeting is to be arranged at Government level with Chancellor and concerned Officers of the University and after discussing the matter in this meeting suitable decision would be taken.

146

(B) Professional Courses (Engineering, Pharmacy, Hotel Management, Management Science, Architecture, Planning, Computer Science, Law, Physical Education, Teaching Science etc):

Taking into consideration the situation of Covid­19 in the State the examinations of final session/final year of Professional Courses cannot be arranged. For those students like non­professional courses the decision has been taken in the meeting of State Disaster Management Authority that action would be taken as per following point (1), (2) and (3) in above point A. The concerned apex institution of concerned professional courses can make a request for getting approval to the same. In this regard separate communication would be done.

2. This Government Resolution is being released as per the decision taken in the meeting held on 18th June, 2020 of State Disaster Management Authority formed under Disaster Management Act 2005.”

106. The guidelines dated 06.07.2020 categorically

directed all Universities/Colleges to hold the

examination of terminal semester/final year, option

for not holding the examination was given in the 147

revised guidelines as well as the earlier guidelines

only with regard to intermediate/year examination.

Before us submissions have been addressed by the

learned counsel appearing for the petitioners

contending that students can be promoted on the basis

of previous year assessment and internal assessment

which in no manner shall be lowering down the

standard of education and the decision taken by the

State Government and the State Disaster Management

Authority to grant such promotion is perfectly in

accordance with law. Referring to Regulations, 2003

it has been submitted that students can be promoted

on the basis of cumulative grade point average. It is

submitted that students have completed five semesters

and no special importance can be attached to the last

semester, hence the Maharashtra Government's decision

to promote on the basis of previous assessment and

internal assessment was in accordance with law. 148

107. We have already held, while considering Issue

No.1, that University Grants Commission Act has been

enacted in reference to Entry 66 of List I. The

States although have legislative competence to

legislate on education including Universities but the

State Legislation is subject to Entry 66 List I. The

revised guidelines issued by UGC are statutory and

referable to University Grants Commission Act, 1956

and shall have precedence as compared to any

inconsistent decision taken by the State. We also

need to consider as to whether in exercise of power

under the Disaster Management Act, 2005, the State or

State Disaster Management Authority could have taken

any decision with regard to promote the students

without undergoing final year/terminal semester

examination. The purpose and object of the Disaster

Management Act, 2005 is management of disasters and

for matters connected therewith. The Disaster

Management is a continuous and integrated process

of planning,organising, coordinating and implementing 149

measures. The Disaster Management has been defined

in Section 2(e) to the following effect:

“Section 2(e)­ “disaster management” means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for—

(i) prevention of danger or threat of any disaster;

(ii) mitigation or reduction of risk of any disaster or its severity or consequences;

(iii) capacity­building;

(iv) preparedness to deal with any disaster;

(v) prompt response to any threatening disaster situation or disaster;

(vi) assessing the severity or magnitude of effects of any disaster;

(vii) evacuation, rescue and relief;

150 (viii) rehabilitation and reconstruction;”

108. The word mitigation has also been defined in

Section 2(i) as follows:

"Section 2(i)­ “mitigation” means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation;”

109. The exercise of powers by the State Disaster

Management Authority or by the State Government which

shall have overriding effect under Section 72 are

those exercise of jurisdiction which are within the

four corners of the Disaster Management Act, 2005.

When the State Disaster Management Authority and

State Government take a decision that for mitigation

or prevention of disaster it is not possible to hold

physical examination in the State, the said decision

was within the four corners of Disaster Management

Act, 2005. However, the decision of the Disaster 151

Management Authority or the State Government that

students should be promoted without appearing in the

final year/terminal semester examination, is not

within the domain of the Disaster Management Act,

2005. The decision to promote students and grant

Degree by a State if contrary to any Central

enactment or guidelines issued thereunder the Central

enactment and the guidelines thereunder shall have

precedence by virtue of the same being referable to

Entry 66 List I. We, thus, conclude that the State

Disaster Management Authority and the State

Government has no jurisdiction to take a decision

that the students of final year/terminal examination

should be promoted on the basis of earlier years

assessment and internal assessment whereas the UGC

guidelines dated 06.07.2020 directed specifically to

conduct final year/terminal semester examination. The

UGC guidelines dated 06.07.2020 in the above respect

shall override the decision of the State Government

and the State Disaster Management Authority regarding 152

promoting the students, does not fall within the

jurisdiction of the Disaster Management Act, 2005 and

shall have no protection of Section 72 of the

Disaster Management Act, 2005. We, thus, conclude

that the State or the State Disaster Management

Authority have no jurisdiction under Disaster

Management Act, 2005 to take a decision for

promoting the students on the basis of previous

performance or internal assessment which decision

being contrary to revised guidelines of the

University Grants Commission cannot be upheld and has

to give way to the guidelines of UGC which is the

Authority to issue guidelines for determination and

maintenance of standards of education and teaching of

the Universities.

110. From the aforesaid discussion, we arrive at the

following conclusions:

153

Conclusions:

(1) The Revised Guidelines dated 06.07.2020 issued by

the UGC are not beyond the domain of the UGC and they

relate to coordination and determination of standards

in institutions of higher education.

(2) The Guidelines dated 06.07.2020 are in

continuation to the earlier Guidelines dated

29.04.2020 and are not contrary to the earlier

Guidelines. We have to look into the substance of

the Guidelines to find out the intention and object

of the Guidelines. The Guidelines were issued with

the object that a uniform academic calendar be

followed by all the Universities and final /terminal

examinations be held.

(3) The Guidelines dated 06.07.2020 has to be treated

to have been issued in exercise of the statutory

powers vested in the Commission under Section 12. As

per the Statutory Regulations, 2003, it is the 154

statutory duty of the Universities to adopt the

Guidelines issued by the UGC. The Guidelines dated

06.07.2020 cannot be ignored by terming it as non­

statutory or advisory.

(4) The differentiation made in the Revised

Guidelines to hold final or terminal semester

examination and to give option for earlier

years/intermediate semester for not holding the

examination has a rational basis. The

differentiation has nexus with the object to be

achieved. We, thus, reject the challenge to the

revised Guidelines on the ground that there is any

discrimination between the students of final

year/terminal semester and those of intermediate and

first year.

(5) The revised Guidelines also cannot be termed to

violate Article 14 of the Constitution on the ground

that one date, i.e., 30.09.2020 has been fixed

irrespective of the conditions prevailing in 155

individual States. The date for completion of

examination was fixed throughout the country to

maintain uniformity in the academic calendar.

(6) The Revised Guidelines dated 06.07.2020 as well

as Standard Operating Procedures for conduct of

examinations circulated vide letter dated 08.07.2020

of UGC as well as O.M. dated 06.07.2020 issued by

MHRD clearly shows deep concern with the health of

all stakeholders, i.e., students as well as the exam

functionaries. Challenge to the Guidelines on the

ground of it being violative of Article 21 is

repelled.

(7) The expression “other bodies” used in opening

part of the Section 12 of the UGC Act, 1956 is in

reference to other bodies apart from Universities as

enumerated under Section 12. The submission that

other bodies as occurring in Section 12 should

include State Disaster Management Authority or health

experts is misconceived. Section 12 never 156

contemplated any such expression. The revised

guidelines dated 06.07.2020 are not in breach of

Section 12 of 1956 Act.

(8) The Disaster Management Act, 2005 empowers the

State Disaster Management Authority as well as the

State Government to take measures for prevention and

mitigation of a disaster and the action taken by the

authorities under the Disaster Management Act have

been given overriding effect to achieve the purpose

and object of the Act, 2005. Saving of human life

has been given paramount importance under the Act,

2005. Primacy have been given to the actions and

measures taken under the Act, 2005 over anything

inconsistent in any other law for the time being in

force.

(9) The direction of the University Grants Commission

in Revised Guidelines dated 06.07.2020 insofar as it

directs the Universities and Colleges to complete the

final year/terminal year examination by 30.09.2020 157

shall be overridden by any contrary decision taken by

the State Disaster Management Authority or the State

Government exercising power under the Disaster

Management Act, 2005.

(10) The State Governments or State Disaster

Management Authority in exercise of power under

Disaster Management Act, 2005 has no jurisdiction to

take a decision that the students of final

year/terminal students should be promoted on the

basis of earlier year assessment and internal

assessment, which decision being contrary to UGC

Guidelines dated 06.07.2020 has to give way to the

UGC Guidelines. The UGC Guidelines dated 06.07.2020

specifically directed to conduct the final year/

terminal semester examination which shall override

such contrary decision of the State Government or

SDMA.

158

111. In view of our foregoing discussion and

conclusion, this batch of cases is disposed of in the

following manner:

(1) The prayer to quash the revised guidelines

dated 06.07.2020 issued by the University Grants

Commission and OM dated 06.07.2020 issued by the

Ministry of Human Resource Development and letter

dated 06.07.2020 issued by the Ministry of Home

Affairs is refused.

(2) The decision taken by the State Disaster

Management Authority/State not to hold final

year/terminal semester examination by 30.09.2020

in exercise of power under Disaster Management

Act, 2005 shall prevail over deadline fixed by

the University Grants Commission i.e. 30.09.2020

in respect to the concerned State.

159 (3) The decision of the State/State Disaster

Management Authority to promote the students in

the final year/terminal semester on the basis of

previous performance and internal assessment

being beyond the jurisdiction of Disaster

Management Act, 2005 has to give way to the

guidelines of UGC dated 06.07.2020 directing to

hold examination of final year/terminal semester.

The State and University cannot promote the

students in the final year/terminal semester

without holding final year/terminal examination.

(4) If any State/Union Territory in exercise of

jurisdiction under Disaster Management Act, 2005

has taken a decision that it is not possible to

conduct the final year/terminal semester

examination by 30.09.2020, we grant liberty to

such State/Union Territory to make an application

to the University Grants Commission for extending

deadline of 30.09.2020 for that State/Union 160

Territory which shall be considered by UGC and

rescheduled date be communicated to such

State/Union Territory at the earliest.

112. All writ petitions are disposed of accordingly.

The Special Leave Petition No.10042 of 2020 is

dismissed.

.....................J. ( ASHOK BHUSHAN )

......................J. ( R. SUBHASH REDDY )

......................J. ( M.R. SHAH ) New Delhi, August 28, 2020.