Mobile View
Main Search Advanced Search Disclaimer
Cites 48 docs - [View All]
The University Grants Commission Act, 1956
The Tezpur University Act, 1993
Article 226 in The Constitution Of India 1949
The Provincial Insolvency Act, 1920
Annamalai vs The Secretary To The Government on 2 January, 2008

User Queries
View the actual judgment from court
Madras High Court
P.Gandhi vs The Inspector General on 14 March, 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14/03/2011

CORAM

THE HONOURABLE Mr.JUSTICE M.VENUGOPAL

W.P.(MD)No.1099 of 2007

and

M.P.Nos.2 & 3 of 2007

P.Gandhi .. Petitioner

V.

1.The Inspector General

The Directorate General

Border Security Force,

Block No.10, CGO Complex

Lodhi Road, New Delhi- 110 003.

2.The Under Secretary,

University Grants Commission,

Bahadurshah Jafar Marg,

New Delhi - 110 002.

3.Under Secretary to the Government of India,

Ministry of Human Resource Development,

Department of Higher Education,

(Distance Learning Division),

Shastri Bhavanm New Delhi.

4.The Director,

Director of Distance Education,

Madurai Kamaraj University,

Palkalai Nagar, Madurai - 625 023. .. Respondents

Prayer

Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records on the file of the 2nd respondent in connection with the orders passed by him in his proceedings NO.F1-17/2005 (CPP II) dated 3.01.2007 and the order passed by the 3rd respondent in his proceedings NO.F5-34/2006-DL dated 30.11.2006 and also the order passed by the 1st respondent in his proceedings A8/SI (GD) LDLE- 05/PERS (SSB)/BSF/2007/438-40 dated 8.1.2007 and quash the same and direct the 1st respondent to appoint the petitioner to the post of Sub-Inspector (GD) on the basis of selection already made by the 1st respondent by accepting the post graduate degree awarded by Madurai Kamaraj University in his favour, as recognized valid by the 1st respondent 66 Battalion BSF Commandant himself by his letter dated 7.12.2002 and also his letter dated 27.06.2001.

!For Petitioner ... Mr. R.Singharavelan

for M/s.J.Nisha Banu

^For Respondents 1 and 3 ... Mr.P.Krishnasamy

For 2nd Respondent ... Mr.B.Vijay Karthikeyan

For 4th Respondent ... Mr.R.Janakiramulu

:ORDER

The Petitioner has filed the present Writ Petition seeking the relief of writ of Certiorarified mandamus in calling for the records pertaining to the order passed by the 2nd Respondent in his proceedings No.F1-17/2005 (CPP II) dated 3.01.2007 and the order passed by the 3rd Respondent in his proceedings No.F5-34/2006-DL dated 30.11.2006 and also the order passed by the 1st Respondent in his proceedings A8/SI (GD) LDLE-05/PERS (SSB)/BSF/2007/438-40 dated 8.1.2007 and quash the same. Further, the Petitioner has prayed for issuance of a direction in directing the 1st Respondent to appoint the Petitioner to the post of Sub-Inspector (GD) on the basis of selection already made by the 1st respondent by accepting the post graduate degree awarded by Madurai Kamaraj University in his favour, as recognized valid by the 1st Respondent 66 Battalion BSF Commandant himself by his letter dated 7.12.2002 and also his letter dated 27.06.2001.

2.The Petitioner was selected as Constable General Duty on 06.10.1993, on merits based on the qualification of 10th class and 2 years ITI (Turner Trade) in Border Security Force. After completion of basic training, he was posted at 66 Battalion Jaisalmer in Rajasthan State. Subsequently, he served in numerous places and presently he has been serving in Training Centre and School, Hazaribagh, Gharkhand.

3.According to the Petitioner on 01.10.2000, through proper channel, he sought permission to study higher education (Master of Arts) through correspondence course from the Competent authority and the same was granted on 05.10.2000 by the office of the Commandant, 66 Battalion BSF, C/o.56 APO.

4.During the year 2001-2002, the Petitioner, after going through Preparatory Course for Master of Arts and after clearing the entrance test, obtained a degree in Master of Arts (hereinafter referred to as M.A.) from Madurai Kamaraj University, through its Distance Education Curriculum of Madurai Kamaraj University under recognised open University Liberalised Scheme. The preparatory course in the said scheme for studying the Master of Arts, entail a process in order to bring the candidate to an adequate level of understanding the subjects.

5.The Petitioner with the qualification of M.A. applied to the post of Sub-Inspector, General Duty through limited Inter-Departmental Competitive Examinations in the years 2002, 2003 without success. However, he passed the same in the third attempt in the Inter-Departmental Examination of the year 2005, which was held on 24.02.2006.

6.On 09.05.2006, the Department verbally instructed the Petitioner to produce under Graduation Degree Certificate, to which he sent a reply that he possessed a Degree of Master of Arts, which is a recognised degree from Madurai Kamaraj University, Tamil Nadu under Liberalised Scheme of Open University System. He also furnished all the relevant documents to the satisfaction of the competent authority.

7.On 19.05.2006, the Petitioner received an official correspondence to appear for the test of Physical, Medical and Personality test examinations in Delhi.

8.On 06.06.2006, the Petitioner was approved by the competent authority to be finally selected to the post of Sub-Inspector General Duty in Border Security Force. The aforesaid exercise was conducted purely on provisional basis till clarification was receive from the Director of Distance Education Council, IGNOU, New Delhi regarding my graduation degree. Thus, his result was withheld till the receipt of clarification.

9.On 28.11.2006, except the Petitioner out of all six selected persons to the post of Sub-Inspector GD in BSF, only five other selectees were informed to join and attend basic training commencing in the 2nd week of 15th January, 2007.

10.The Petitioner was serving with the 1st Respondent for the last 13 years and after due permission, he had completed the Master of Arts post graduate degree and had obtained a valid degree from a recognised university called Madurai Kamaraj University, Directorate of Distance Education, Open University System under Liberalised Scheme. While that being the position, it is not known as to why he was not sent for training for the selected post which commenced in the 2nd week of 15.01.2007.

11.The Petitioner filed a Writ Petition in the High Court of New Delhi in W.P.(C).No.19000/2006 and in that the following order was passed on 19.01.22006. "Counsel appearing for the respondents states that they are looking into the grievance of the petitioner but they have to find out whether the degree obtained by the Petitioner is recognized / approved. Let such an inquiry be completed and the petitioner be informed by 8.1.2007 whether he would be permitted to join the training which is stated to be commencing from 15.1.2007 or not. With the above observation, the Writ petition is disposed of. The petitioner will at liberty to take steps as are permissible under law".

12.The Petitioner's case was considered by the Deputy Inspector General (PERS) and an order dated 08.01.2007 was passed cancelling his candidature of the post of Sub-Inspector (G.D) on the basis that the Ministry of Human Resource Development) Department of Higher Education by its letter dated 30.11.2006.

13.The UGC by its letter 03.01.2007 has stated that the Masters Degree awarded by Madurai Kamaraj University to any students who have not successfully completed 3 years of an undergraduate degree was in contravention of UGC Regulations. The said order dated 30.11.2006 was not served on the Petitioner at the time of disposal of the writ filed by him before the Delhi High Court. It was only served along with the order dated 08.01.2007.

14.The Learned Counsel for the Petitioner urges before this Court that the order passed by the Deputy Inspector General (PERS) on the basis of the clarification given by the University Grants Commission & Human Resource Development run repugnant to the order passed by the Government of Tamil Nadu in G.O.Ms.No.64 P & AR (R) Department dated 02.02.1996 and also the Statutory Regulation of Madurai Kamaraj University which was established by the Act enacted by the Tamil Nadu Government.

15.The Learned Counsel for the Petitioner contends that the course undergone by the Petitioner was under the liberalised scheme of Open University Scheme followed by Madurai Kamaraj University under the Directorate of Distance Education and he had undergone the same with a permission of the department.

16.The Learned Counsel for the Petitioner submits that the Petitioner was called for selection process only after taking into consideration of his basic qualification and after selected him on merits, the Respondents are estopped from going into the issue of Basic Qualification, though they had formally said that the Degree is subject to scrutiny and an undertaking was taken from him.

17.According to the Petitioner, the letter of Madurai Kamaraj University dated 15.06.2006 would clearly prove that a Degree got by him stands automatically recognised for the purpose of employment for both Central and State Governments. That apart, para 3 of G.O.Ms.No.64 dated 02.02.1996 speaks of 'The Government after careful examination have decided to accept the recommendation of the Committee and accordingly direct that under Graduate / Post Graduate Degrees under Open University System of the Madurai Kamaraj University viz., B.A., B.Sc., B.Com., B.B.A., and M.A., M.L.S., M.Com., be recognised as equivalent to the correspondent Under graduates. Post graduates Degrees obtained through regular courses of study for purpose of employment in public services and by virtue of this Government Order which has been in vogue for more than 10 years the stand taken by the Respondents 1 and 2 is to be declared as ultravires and unconstitutional.

18.The Learned Counsel for the Petitioner brings it to the notice of this Court that the Petitioner has sought clarification from the Association of Indian Universities, New Delhi which clarified that the Madurai Kamaraj University is a Statutory University set up in the year 1966 through an Act enacted by the Tamil Nadu State Legislature and it is one of the Universities recognised by the University Grants Commission and further said that the M.A. (Master of Arts History) under Open University Liberalised Scheme of Madurai Kamaraj University is recognised post graduate degree and therefore, a degree awarded by the same stands automatically recognised.

19.The Learned Counsel for the Petitioner projects an argument that the Respondents 2 and 3 had not considered the records and passed orders against the Petitioner. As a matter of fact, in the order dated 03.01.2007 of University Grants Commission it is clearly mentioned that the authenticity of the P.G. Degree got by the Petitioner is subject to verification from the Madurai Kamaraj University.

20.Advancing his arguments, the Learned Counsel for the Petitioner contends that Inspector General of Border Security Force, Jammu had written a letter dated 05.03.2001 to the 1st Respondent seeking to clarify as to whether the Petitioner could be permitted to take part in the selection. Also, on 07.12.2002 the Commandant, 66 Battalion had declared that the Petitioner had to be treated as a candidate of M.A. for all purposes and the same would be endorsed in his service register.

21.The pith and substance of the contentions of the Learned Counsel for the Petitioner is that the Post Graduate Degree of the Petitioner ought to be treated as a valid degree and he should have been given the appointment.

22.Per contra, it is the submission of the Learned Counsel for the Respondents 1 and 3 that the Petitioner wrote the examination conducted on 24.02.2006 for selection to the post of Sub-Inspector (General Duty) through Limited General Departmental Competitive Examination-2005 (hereinafter referred as SI (GD) LDCE-2005) on provisional basis as he had not submitted graduation degree certificate which is a pre-requisite for the selection to the post. Further, on scrutiny of the documents received from the Petitioner along with his application for the post, it came to be known that he had not furnished the Graduation Degree Certificate along with his application while applying for the post, which is a pre-requisite one. The Petitioner being serving BSF personnel he was required through his unit to produce mark sheets of BA exam/graduation degree certificate.

23.Moreover, the Petitioner intimated that 'he had completed MA degree through open University as per liberalised scheme of Madurai Kamaraj University, Palkalai Nagar, Madurai and Tamil Nadu directly after completion of 10th class. On receipt of the Petitioner's letter, the validity of his post graduation certificate degree and eligibility for the post based on the said degree and related issues thereto were clarified from Ministry of Human Resource Development, Department of Higher Education (Distance Learning Division) (hereinafter referred as MHRD) and University Grant Commission, Bahadurshah Jafar Marg, New Delhi (hereinafter referred as UGC). However, he was not allowed to appear for Phase-II test i.e. physical measurement, physical efficiency test, interview and medical examination. However, he gave an undertaking promising to submit the original B.A. Degree certificate along with I, II and III year Mark Sheets within 15 days failing which his candidature might be treated as cancelled as such he was provisionally allowed to appear in these tests. The Petitioner, on furnishing an undertaking that he would provide B.A. Degree certificate, I, II and III year Mark Sheets etc., he was permitted to appear in physical measurement, physical efficiency test, interview and medical examination provisionally subject to the production of Graduation Degree Certificate within 15 days, which he had produced. He was never finally selected for the post. He intimated that he obtained Post Graduation Degree directly after qualifying 10th class, his case was referred to the 3rd Respondent/ Ministry of Human Resource Development and the 2nd Respondent/ University Grants Commission to ascertain the validity of such degree and eligibility of candidate for the post applied for.

24.The 3rd and 2nd Respondents had intimated that an individual could not undergo post graduation degree without qualifying three years degree course and UGC informed that the Master's degree awarded by the Madurai Kamaraj University to any student who had not successfully completed three years of an undergraduate degree is in contravention of UGC regulations. The Distance Education Council (DEC), Indira Gandhi National Open University (IGNOU) had intimated that all the qualifications awarded through distance education mode by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities as per Section 3 of the UGC Act, 1965 and Institutions of National Importance declared under an Act of Parliament stand automatically to posts and services under the Central Government provided it was approved by DEC, IGNOU. The Distance Education Council, IGNOU had informed the 3rd Respondent/MHRD, Department of Higher Education (Distance Learning Division) that the program offered by Madurai Kamaraj University, Madurai through distance education mode had not been recognised by them. Upon confirmation from the 3rd and 2nd Respondents, the candidature of the Petitioner was cancelled on 08.01.2007.

25.The Learned Counsel for the Respondents 1 and 3 takes a plea that the Petitioner was never selected to the post of SI (GD) LDCE since his result was withheld due to lack of requisite Graduation Degree. Hence, he was not called for training for the selected post. Also, the Petitioner has filed a Writ Petition (C)No.19000 of 2009 before the Delhi High Court and the same was disposed of on 19.12.2006 with a direction that 'the Petitioner be informed by 08.01.2007 whether he would be permitted to join the course which is stated to be commencing from 12.01.2007 or not'. The Hon'ble Delhi High Court was apprised about the decision taken by the department regarding the cancellation of candidature of Petitioner along with copies of letters received from the 3rd and 2nd Respondents.

26.The main contention advanced on behalf of the Respondents 1 and 3 is that the Petitioner was not possessing the requisite qualifications as per Recruitment Rules published by the Ministry of Home Affairs vide G.S.R.128 and in view of the clarification of the 3rd Respondent as per letter No.F.5-34/2006- DL dated 30.11.2006 and as per the 2nd Respondent's letter No.F.11-17/2005 (CPP- II) dated 03.01.2007 his candidature was cancelled and therefore, the writ petition is liable to be dismissed in the interest of justice.

27.The Learned Counsel for the Respondents 1 and 3 submits that the Petitioner was provisionally allowed to appear in the Phase-II test etc., and after obtaining clarification/ opinion of the 3rd and 2nd Respondents, he was found not eligible for the post and therefore, his candidature was cancelled and moreover, there is no estoppel since the Respondents have treated the Petitioner's candidature as a temporary one.

28.The Learned Counsel for the Respondents 1 and 3 by pointing the G.O.Ms.No.64 dated 02.02.1996 submits that the recognition of degrees awarded by Madurai Kamaraj University through Open University System is only for the purpose of employment in Tamil Nadu State and therefore, the same cannot be made applicable to Central Government Services unless the prescribed course is recognised by the 2nd and 3rd Respondents.

29.Lastly, it is contended on behalf of the Respondents 1 and 3 that the Writ Petition is not maintainable both on factual aspects and on legal plane.

30.The Learned Counsel for the 2nd Respondent submits that the 2nd Respondent/UGC in exercise of it's powers conferred as per Section 26(1)(f) of the University Grants Commission Act, 1956 framed the UGC (the minimum standards of instructions for the grant of the First Degree through non-formal/distance education in the faculties of Arts, Humanities, Fine Arts, Music, Social Science, Commerce and Sciences) Regulations, 1985 and the Regulation 2 enjoins as follows:

"2.Admission/Students

(1)No student shall be eligible for admission to the 1st degree course through non-formal/distance education unless he has successfully completed 12 years schooling through an examination conducted by a Board/University. In case there is no previous academic record, he shall be eligible for admission if he has passed an entrance test conducted by the University provided that he is not below the age of 18 years on July 1 of the year of admission.

(2)No student shall be eligible for the award of the first degree unless he has successfully completed a three year course; this degree may be called the B.A./B.Sc./B.Com (General Honours/ Special) degree as the case may be. Provided that no student shall be eligible to seek admission to the Master's Course in these faculties, who has not successfully pursued the first degree course of three years duration.

Provided further that, as a transitory measure where the universities are unable to change over to a three year degree course, they may award a B.A./B.Sc./B.Com (Pass) degree on successful completion of two year course, but that no student of this stream shall be eligible for admission to the Master's course unless he has undergone a further one year bridge course and passed the same. The three year degree course after 10+2 stage should in no case be termed as B.A./B.Sc./B.Com. (Pass) degree."

31.Further, as per Section 26(1)(f) of the University Grants Commission Act, 1956, the 2nd Respondent/UGC has framed the UGC (the minimum standards of instructions for the grant of the First Degree through formal in the faculties of Arts, Humanities, Fine Arts, Music, Social Science, Commerce and Sciences) Regulations, 1985 and in this regard, Regulation 2 reads hereunder: "2.Admission/Students

(1)No student shall be eligible for admission to the 1st degree course in these faculties unless he has successfully completed 12 years schooling through an examination conducted by a Board/ University. The admission shall be made on merit on the basis of criteria notified by the institutions after taking into account the reservation order issued by the Government from time to time. (2)Student enrolment shall be in accordance with the number of teachers and physical faculties available.

(3)No student shall be eligible for the award of the first degree unless he has successfully completed a three year course; this degree may be called the B.A./B.Sc./B.Com.(General/HOnours/ Special) degree as the case may be. Provided no student shall be eligible to seek admission to the Master's Course in these faculties, who has not successfully pursued the first degree course of three years duration.

Provided further that, as a transitory measure where the universities are unable to change over to a three year degree course, they may award a B.A./ B.Sc./B.Com (Pass) degree on successful completion of two year course, but that no student of this stream shall be eligible for admission to the Master's course unless he has undergone further one year bridge course and passed the same. The three year degree course after 10+2 stage should in no case be termed as B.A./B.Sc. /B.Com. (Pass) degree."

32.The Learned Counsel for the 2nd Respondent/UGC contends that as per first proviso to Regulation 2(2) of the University Grants Commission Regulation, unless and until a candidate successfully pursues the First Degree course of three years duration, he is not eligible for admission to the Master's Course. Also, if a candidate has obtained a Master's degree in contravention of Regulation 2 of the aforesaid University Grants Commission Regulations, such Master's degree cannot be termed a valid degree for any purpose including employment.

33.The Learned Counsel for the 2nd Respondent invites the attention of this Court, the 2nd Respondent/UGC's letter No.F.1-75/91(CPP) dated 30.12.1991 wherein the Registrar of various Universities have been informed that Commission in its meeting held on 19.11.1999 relaxed the application of UGC Regulations 1985 regarding minimum standards of instruction for the grant of First Degree in various faculty in respect of those candidates for their admission to Master Degree Program without undergoing one year bridge course who obtained their First Degree prior to 1985 irrespective of its duration be treated at par with the three years Degree Course. Accordingly, the Universities were requested that for admitting students in different courses for which First Degree is the minimum qualification, the three years duration for such a course may not be insisted upon in respect of candidates who obtained their First Degree prior to 1985.

34.Continuing further, the 2nd Respondent/UGC, in its D.O. Letter No.F.11- 4/92(CPP-II) dated 24.04.1996, has informed the Universities as follows: ".... The matter regarding validity of one-sitting degree course equivalent to three-years degree course has been under the consideration of the Commission, on receipt of number of references from individuals and other quarters regarding the one-year degree course (one sitting) being offered by a few universities in the court which is violative of the above regulations. The Commission in its meeting held on 20th March, 1996 considered there recommendations made by the Committee appointed by it to consider the matter regarding validity of one-year degree course (one-sitting), equivalent to three- years regular course of first degree and decided as under:-

1.According to the UGC Regulations of minimum standards, both formal and non- formal degree courses must be of three years duration.

2.The undergraduate programme has been generally accepted as a three years programme in most of the universities. However, it was noted that in some States, the Universities offer a two-year degree course after +2. However, such students are not eligible for admission to the Master's degree programme.

3.It was desired that the UGC regulations of minimum standards for formal as well as non-formal education be circulated to the universities for compliance.

4.It was decided that the requirement for a three years degree course should also be notified.

5.No private candidate should be permitted to appear for an examination. I shall be grateful if you would kindly ensure that the above decision of the Commission as well as the UGC regulations on the minimum standards of instructions for both formal and non-formal are scrupulously followed by your university the practice of private appearance of candidates in the degree examination as well as of offering one-sitting examinations are stopped with immediate effect."

35.That apart, the 2nd Respondent, by its D.O. Letter F.11-4/92(CPP-II) dated 14.03.1997, has informed the Vice Chancellor's of all the Universities to the following effect:

"In continuation to this office letter of even number dated 24th April, 1996 regarding validity of one sitting degree from the recognized universities. This is to inform you that the Commission considered the matter in its meeting held on 10th September, 1996 and decided as follows:

"In its previous meeting dated 29th March, 1996, the Commission had decided that in view of the 1985 regulations for the minimum requirements for the 1st degree, no university is allowed to enroll candidates for one sitting B.A. Degree course from the year 1996-97 onwards. Representations were received from many candidates. It was decided that the candidates already enrolled should complete their degree by the year 1998-99. The universities violating this decision may be debarred from receiving plan assistance from the Commission. The degrees of the candidates enrolled for the one time Batchelor's degree programme, upto the year 1995-96 may be treated as valid. The degree of the candidates declared valid may be treated at par with other degrees of the same university for all purposes including admission to higher degrees and employment."

36.Moreover, the 2nd Respondent/UGC, by its letter No.F.1-30/96(CPP-II) dated 1st February, 1998, has informed the Registrar of various Universities in the following manner:

"... I am to inform you that the commission has considered the request and representations received from several candidates regarding the validity of M.A./M.Sc./M.Com. Degree (one sitting) and decided that no university may be allowed to enroll candidates for one sitting of M.A./M.Sc./M.Com. from the academic year beginning in 1998 onwards and the students already registered may be allowed to complete their course by 30th June, 1999, and the degree awarded to these candidates upto that period may be treated as valid."

37.The 2nd Respondent/UGC, as per letter No.F.1-30/96 (CPP-II) dated 23.07.1998, has informed the Registrar of all Universities regarding the validity of M.A./M.Sc./M.Com. Degree (one sitting) which runs thus: "... I am to invite your attention to this office letter of even number dated 1st Feb., 1998 and to inform you that the Commission re-iterates its decision as follows:

"The Commission has considered the request and representations received from several candidates regarding the validity of M.A./M.Sc./M.Com. Degree (one sitting) and decided that no university may be allowed to enroll candidates for one sitting M.A./M.Sc./ M.Com. from the academic year beginning in 1998 onwards and the students already registered may be allowed to complete their course by 30th June, 1999, and the degree awarded to these candidates upto that period may be treated as valid."

38.The 2nd Respondent/UGC also in its letter dated 30.06.1999 has informed the Universities to the effect that '... A number of representations/complaints were received from various person/s students regarding non recognition of one sitting Degree by the Universities for the purposes of Higher Studies and employment. As already intimated by the U.G.C. vide its letter of even No. Dated 14.03.1997 that the candidates who have completed their B.A. under one sitting during the year 1998-99 may be treated as valid. The degree of the candidate declared valid all purposes including admission to Higher degrees and employment. Any University violating this decision would be viewed seriously by the Commission.'

39.The 2nd Respondent/UGC, in supersession of its notification dated 25th November, 1985, 30th May, 1986 and December, 1998, framed the University Grants Commission (Minimum Standards of Universities for the Grant of the First Degree through formal education), Regulations, 2003 and the Regulation 2.1 provides as follows:

"No student shall be eligible for admission to a first degree programme in any of the faculties unless he/she has successfully passed the examination conducted by a Board/university at the +2 level of schooling (either through formal schooling for 12 years, or through open school system) or its equivalent."

40.The 2nd Respondent/UGC in supersession of its notification dated December, 1998, framed the University Grants Commission (Minimum Standards of Instructions for the Grant of the Masters Degree Through Formal Education), Regulations, 2003 and the Regulation 2.1 & 2.2 runs as follows: "2.1 No student shall be eligible for admission to a masters degree programme in any of the faculties unless he/she has successfully completed three years of an undergraduate degree or earned prescribed number of credits for an undergraduate degree, through the examinations conducted by a university/ autonomous institution or possesses such qualifications as recognized by the concerned University as equivalent to an undergraduate degree.

2.2 In case of integrated Masters degree programme of five or more years, no student shall be eligible for admission unless he/she has successfully passed the examination conducted by a Board/ University at the plus two level of schooling (either through formal schooling for twelve years or through open school system) recognized by the Central/State Government for this purpose or its equivalent."

41.The Learned Counsel for the 2nd Respondent/UGC contends that as far as the Bachelors Degree (the First Degree) and the Masters Degree (the second degree) obtained through one sitting is entirely different from the Bachelors Degree and Masters Degree obtained through regular mode as in the one sitting program, the candidate takes the examination of all papers in one sitting whereas in the degrees obtained through the other mode/regular mode, the candidate takes the examination of various papers at the end of each academic session/semester.

42.The contention of the Learned Counsel for the 2nd Respondent /UGC is that in the light of the aforesaid University Grants Commission Regulation, unless and until a candidate successfully pursues the First Degree course of three years duration, he is not eligible for admission to the Master's Course and also that if a candidate has obtained a Bachelor's or/and Master's degree in contravention of the aforesaid University Grants Commission Regulations, such Bachelor's or/and Master's degree cannot be termed as a valid degree for any purpose including employment.

43.The Learned Counsel for the 2nd Respondent/UGC submits that the Hon'ble Supreme Court in the decision Annamalai University V. Secretary to Government Information and Tourism Department & others (2009 (4) SCC 590) has held in paragraph 50 that the UGC Act, having been enacted by Parliament in terms of Entry 66 of List I of the VII schedule to the constitution of India would prevail over the Open University Act. Further, in paragraph 56 the Hon'ble Supreme Court held as under:-

"56 Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non-compliance therewith would entail its consequences. The power of relaxation conferred on UGC being in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the Regulations on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If mandatory provisions of the statute have not been complied with the law will take its own course. The consequences will ensue."

44.The Learned Counsel for the 2nd Respondent/UGC submits that as per 22(1) of the University Grants Commission the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an Institution Deemed to be a University under Section 3 or an Institution specially empowered by an Act of Parliament to confer or grant degrees.

45.Further, Section 22(2) of the Act provides that save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree. Section 22(3) of the Act defines the term 'Degree' which means 'any such degree as may, with the previous approval of the Central Government, by specified in this behalf by the Commission by notification in the Official Gazette.

46.Section 23 of the Act speaks of 'no institution, whether a corporate body or not, other than a University established or incorporated by or under a Central Act, or Provincial Act or a State Act, shall be entitled to have the word "University" associated with its name in any manner whatsoever.' Also, Section 24 of the Act deals with the punishment for the contravention of the provisions of Section 22 or 23 of the Act. It provides that who ever contravenes the provisions of Sections 22 or 23, shall be punishable with fine which may extend to Rs.1,000/-, and if the persons contravening, is an association or other body of individuals, every member of such association or other body, who knowingly or wilfully authorises or permits the contravention, shall be punishable with fine which may extend to Rs.1,000/-.

47.To put it succinctly, it is the contention of the Learned Counsel for the 2nd Respondent/UGC that a University deemed to be University and an institution specially empowered by an Act of Parliament to confer or grant degrees, can confer only those degrees which are specified by the University Grants Commission under Section 22(3) of the University Grants Commission Act, 1956. Further, unless a degree is so specified by the University Grants Commission, no University, deemed to be University and an institution specially empowered by an Act of Parliament can confer the same. In this connection, it is relevant to point out that it is not open to the Universities or deemed to be Universities to even change the nomenclature of any degree as the same may lead to disparity and confusion among the students. Also, while conferring or awarding a Degree, the concerned University, Institution Deemed to be University and an institution specially empowered by an Act of Parliament, is required to comply with the norms and Regulations framed by various statutory bodies, as applicable to them.

48.The Learned Counsel for the 4th Respondent/Directorate of Distance Education, Madurai Kamaraj University submits that the Directorate of Distance Education (DDE) was formerly known as Institute of Correspondence Courses and Continuing Education (ICC and CE) was established in the year 1971 in Madurai Kamaraj University and that the Open University System for UG and PG courses commenced during the year 1991.

49.The Learned Counsel for the 4th Respondent brings it to the notice of this Court that the PG courses for Open University System were suspended in July 2004 and UG courses were suspended during the year January 2007, in view of the order passed by the Tamil Nadu Government as per letter of the Deputy Secretary, Higher Education Department, Chennai in No.24088/H2/2006-4, dated 22.12.2006 and now the TNOU is offering Open University Courses in Tamil Nadu State.

50.According to the Learned Counsel for the 4th Respondent /University, Madurai Kamaraj University is included in the list of Universities maintained by the 2nd Respondent/UGC as per Section 2(f) of the UGC Act 1956 and further, a Distance Education Council (DEC, New Delhi) has granted Provisional Recognition to Madurai Kamaraj University for offering programs through Distance mode as per communication No.DEC/ MKU/Tamil Nadu Government/2007/6278, dated 02.11.2007 and the Distance Education Council has given only this Provisional Recognition to all the 20 Universities in Tamil Nadu.

51.It is the contention of the Learned Counsel for the 4th Respondent that the Distance Education Council shall provide Permanent Recognition to Universities and Institutions (offering Distance Education) only in future and the 4th Respondent/University has already applied for Permanent Recognition in the new format.

52.The stand of the 4th Respondent is that Distance Education Council has given only Institutional Recognition. "... in the place of programme approval and once the institution receives the recognition, the programmes approved by its statutory bodies happen to be approved by the DEC."

53.In effect, the contention of the Learned Counsel for the 4th Respondent is that once recognition is granted by the Distance Education Council to an Institution, all its programs are automatically approved without giving any time frame for giving effect and those who were conferred degrees so far are also eligible for employment in Central and State Governments without any time frame.

54.The Learned Counsel for the 4th Respondent refers to G.O.Ms.No.64 dated 02.02.1996 of the Tamil Nadu Government in and by which the State Government has approved Degree Courses offered under Open University System of 4th Respondent as equivalent to the degrees obtained in the regular courses for the purpose of employment in public services and also that the Madurai Kamaraj University established in the year 1966, is offering Distance Education from the year 1971, whereas the (IGNOU) has started functioning from 1980.

55.The Learned Counsel for the Petitioner submits that the Petitioner has addressed a letter dated 01.10.2000 to the Commandant, 66 BN BSF C/o. 50 APO through proper channel praying for permission be granted to him for studying higher education (MA) at the earliest since the entrance test for MA correspondence course is likely to be held in the near future and the Commandant, 66 Bn BSF, on 05.10.2000, has granted permission to the Petitioner for appearing in MA examination subject to following conditions: (a)It will not interfere in Government duty and other Government work. (b)He will go on long leave i.e. Earned Leave at the time of his examination only.

(c)The permission can be cancelled at any time in case of exigency of service and that the Petitioner has obtained the M.A. Degree in the year 2002.

56.Proceeding further, the Learned Counsel for the Petitioner contends that on 05.03.2001 the 1st Respondent has addressed a letter to Head Quarters, Director General, Border Security Force (Pers Rectt), Block No.10, CGO Complex, New Delhi - 110 003 forwarding an application submitted by the Petitioner in and by which it is mentioned, among other things, that 'he intends to apply for the recruitment of ASF/Clk (departmental) after completion of post graduate degree and he wants to know as to whether he will be eligible for appearing for the post of ASF/Clk for which the minimum qualification is 10 plus 2, as he is doing the post graduate degree without 10 +2 or B.A. Also, a copy of page No.7 of the prospectus of the 4th Respondent/ University has also been enclosed which clarifies the equivalent Degrees from that University.

57.A Perusal of the aforesaid letter dated 05.02.2001 of the 1st Respondent shows that a clarification has been sought for in respect of the Petitioner, who has been studying the post graduate degree under Open University System of the 4th Respondent/Madurai Kamaraj University, Tamil Nadu directly after completion of his S.S.L.C.

58.On 27.06.2001 a reply from the Commandant (Staff), Government of India, Ministry of Home Affairs, Directorate General, Border Security Force, (Staff Section) in No.F.60011/22/89-Staff/BSF /8498 to the Ftr. HQ BSF, Jammu wherein it has been stated that 10 + 2 or equivalent is the minimum qualification prescribed for the post of ASI/Clk in BSF and therefore, candidates with graduation and post graduation, are also eligible for appearing in the test.

59.The Petitioner, on 16.11.2002, has addressed a letter to the Commandant, 66 Bn BSF C/o. 56 APO (through proper channel) wherein he has mentioned that he has successfully completed his M.A. Course and that he has forwarded the following documents:

1)Photo copy of Mark Sheet of MA course.

2)Photo copy of MA Provisional Certificate.

3)Photo copy of course completion certificate of MA course and further requested that necessary action regarding the completion of his M.A. Degree may be entered in his service record and his qualification may be mentioned as M.A. for all purposes.

60.On 07.12.2002 the Office of the Commandant, 66 Battalion BSF C/o 56 A.P.O., has stated that 'As approved by the competent authority, education qualification in respect of No.93455683 Constable P.Gandhi of this unit attached with Saw, Ftr HQ BSF Jammu is hereby treated as "MA" in all purposes and same may be endorsed in his Service Record.'

61.The letter dated 21.02.2005 of the Deputy Inspector General (PERS) has addressed to ADG West/East , All FTR HQrs BSF, All Sector HQrs BSF, All Training Institutions BSF, All STCs, CENWOSTO/ TSU/SIW/SRO/CSMT/STS-Tigri/STS Bangalore/ HQ Arty/Arty Trg School Tekanpur/Arty Regt/Sig Regt/Water Wing Bhuj & Madhopur Air Wing. HQ NSG/HQ SPG refers to the selection of SI (GD) through Limited Departmental Competitive Examination (LDCE) - 2005 and it is mentioned that an advertisement (departmental) for recruitment of SI (GD) in BSF through LDCE mentioning Promotion quota - 50%, direct Recruitment - 33%, LDCE - 17% has been forwarded and that the said advertisement has been requested to be given wide publicity and circulated upto the level of BOP and further it is stated that the last date of receipt of application has been fixed on 31.03.2005. The Petitioner has received the call letter dated 23.01.2006 from the Border Security Force Academy, Tekanpur for the examination dated 24.02.2006.

62.A communication dated 07.05.2006 from FHQ BSF has been addressed to the Additional Director General, (East), All FTR HQ BSF wherein it is mentioned that the Petitioner has appeared in PET. & INTERVIEW etc. and he has been selected purely on provisional basis till a clarification is received from the Director Distance Education Council, New Delhi pertaining to his Graduation Degree and hence, his result will be kept withheld till the receipt of the clarification. In the aforesaid communication, the Petitioner and 4 other Constables names have been found a persons finally selected for the post of Sub-Inspector (GD) in BSF through LDCE - 2005.

63.On 09.05.2006 the Petitioner has addressed a letter to DIG & Commandant, TC & S BSF, Hazaribag stated that after completion of 10 class, he completed his M.A. Degree through open University under liberalised scheme in Madurai Kamaraj University, Palkalai Nagar, Madurai, Tamil Nadu - 625 021, which is a recognised university and the degree is equivalent to the regular course M.A. Degree and as such, prayed for favourable action.

64.The Commandant, Special Selection Board, Director General of Border Security Force, New Delhi, by his letter dated 17.05.2006, has addressed a letter to Under Secretary, Ministry of Human Resources Development, Department of Secondary and Higher Educations, Sasthiri Bhavan, New Delhi wherein a clarification has been sought as regards the educational qualification of Petitioner's obtaining M.A. Degree in History from the Madurai Kamaraj University and it has been requested to confirm whether the Petitioner can be treated as Graduate.

65.The 3rd Respondent, by a letter dated 18.05.2006 addressed to the Director, Distance Education Council, Indira Gandhi National Open University, New Delhi, has sent a copy of the letter dated 17.05.2006 with its enclosures received from Shri P.K.Joshi, Commandant (SSB), Ministry of Home Affairs in regard to the clarification pertaining to the Educational qualification/certificate issued from Madurai Kamaraj University to the Petitioner and has requested the Distance Education Council to send comments in the matter immediately.

66.In the Movement Order for selection of SI dated 19.05.2006, the Petitioner has been required to report to Commandant 25 Bn BSF for further duties, on arrival at the destination and he has been issued R/W from Koderma to Delhi & back etc.

67.The 4th Respondent, in its letter dated 15.06.2006 addressed to Whomsoever it may concern, has stated that 'Madurai Kamaraj University is one of the Universities recognised by the University Grants Commission and the degrees awarded by the Madurai Kamaraj University which is established by an Act of Government of Tamilnadu would stand automatically recognised for the purpose of employment, for both State and Central Governments.'

68.In the letter No.EV/VII(5)/2006/600 dated 11.08.2006 the Section Officer (Evaluation) of the Association of Indian Universities addressed the Petitioner to the effect that:

"Madurai Kamaraj University, Palkalainagar, Madurai is a Statutory University set up in 1966 through an Act of Tamilnadu State Legislature. It is one of the universities recognised by the University Grants Commission. The University is also a member of Association of Indian Universities. Master of Arts (History) Degree under Open University (Liberalised) Scheme of Madurai Kamaraj University is a recognised Postgraduate degree. In this connection we would also like to inform you that the degrees awarded by the Statutory Universities through regular studies, correspondence studies or under Open University Scheme stand recognised."

69.The Petitioner, through his letter dated 18.08.2006 addressed to the Commandant (SSB Cell), Pers Directorate, HQ DG BSfF, CGO Complex, New Delhi, has stated that the Association of Indian Universities as stated by its letter dated 11.08.2006 that his M.A. Degree is recognised.

70.Thereupon, the Petitioner on 15.11.2006 has addressed a representation to the Director General, Border Security Force, New Delhi wherein, among other things, he has requested that if the documents enclosed with the letter have been found authentic, his appointment order may please be issued at the earliest, so that he could prepare himself mentally/physically for basic training of Sub Inspector which is likely to commence from 01.01.2007. Also, the Petitioner, by his letter dated 02.12.2006, has addressed to the Secretary, Personnel and Administrative Reforms (R) Department, St. for Jain George, Chennai - 600 009 wherein he has made a request to clarify as to whether the PG degree obtained through Open University System under Liberalised scheme of Madurai Kamaraj University is eligible for the post of Sub Inspector in Border Security Force or otherwise, etc.

71.The 1st Respondent on 08.01.2007 has cancelled the candidature of the Petitioner for the post of Sub Inspector (GD) through Limited Departmental Competitive Examination - 2005 by enclosing the copies of Ministry of Human Resource Development letter dated 30th November 2006 and UGC letter dated 3rd January 2007.

72.It transpires from the letter dated 30.11.2006 of the 3rd Respondent addressed to Shri P.K.Joshi, Commandant, (SSB), Ministry of Home Affairs, Directorate General, Border Security Force, New Delhi that the Petitioner's matter pertaining to clarification as regards his educational qualification has been examined by the 3rd Respondent/ Department in consultation with Distance Education Council (DEC), Indira Gandhi National Open University (IGNOU) and it is mentioned as follows:

"It is stated that Government of India Gazette Notification No.44 dated 1.3.1995 states that all the qualifications awarded through distance education mode by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the University Grants Commission (UGC) Act, 1956 and Institutions of National Importance declared under an Act of Parliament stand automatically recognized for the purpose of employment to posts and services under Central Government provided it has been approved by DEC, IGNOU. DEC has, however, informed that the programmes offered by Madurai Kamaraj University, Madurai through distance education mode have not been recognised by them. In the light of above, a view in the matter may be taken by your organization."

73.Also, it is evident from the letter dated 03.01.2007 of the 2nd Respondent addressed to Assistant Commandant (SSB), Government of India, Directorate General Border Security Force, New Delhi wherein it is clarified as follows:

"1.The UGC regulations 1985 on minimum standards of instructions for the grand of 1st degree through non-formal/ distance education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences Provide that 'no student shall be eligible to seek admission to the Master's course in these faculties who has not successfully pursued the first degree course of three years duration, "A copy of the regulations is enclosed.

2.In view of the above, the Master's degree awarded by Madurai Kamaraj University to any student who has not successfully completed three years of an under graduate degree is in contravention of UGC regulations.

3.The degree courses conducted by the universities through distance education mode require the approval of Distance Education Council, which is the designated body for regulating distance education.

4.As regards the authenticity of the PG degree possessed by Sri P.Gandhi it may be got verified from the Madurai Kamaraj University, Madurai."

74.The Advertisement of Director General, Border Security Force (Personnel Directorate: SSB Cell) speaks of selection for the post of Sub Inspector (GD) in BSF through Limited Departmental Competitive Examination (LDCE) - 2004 wherein the prescribed educational qualification is that 'candidates must be in possession of bachelor's degree of recognised university or its equivalent as on the closing date of application, etc.'

75.A perusal of the Course Completion Certificate issued by the Madurai Kamaraj University, Directorate of Distance Education, Open University System, Madurai shows that the Petitioner has completed the course of study in M.A. History under liberalised scheme from July 2000 to April 2002 conducted by the Directorate.

76.Also, a Provisional Certificate dated 05.09.2002 has been issued in favour of the Petitioner mentioning that he has qualified for the Degree of Master of Arts in History and that he has passed the final examination held during April 2002. He has also been given the Degree Certificate in M.A. History dated 20.01.2003 to the effect that he has passed in second class at the examination held in April 2002.

77.The Learned Counsel for the Petitioner submits that the Petitioner has obtained permission to undergo M.A. course and he has obtained a M.A. Degree in the year 2002 and further, the Petitioner has been informed that as approved by the Competent Authority his educational qualification is treated as M.A. in all purposes and the same has been endorsed in his service record and therefore, it is not open to the 2nd Respondent through its letter dated 03.01.2007 to take a stand that the Master's degree awarded by the Madurai Kamaraj University to any student who has not successfully completed three years of an undergraduate degree is in violation of UGC regulations and that apart the 2nd Respondent/UGC cannot rely upon its regulations of the year 1985 insofar it relates to the grant of First Degree through non-formal/distance education in faculties of Arts, Humanities, Fine Arts, etc.

78.The Learned Counsel for the Petitioner submits that when the Petitioner has applied for permission to study M.A. on correspondence course on 01.10.2000 and later when he obtained the said M.A. degree in the year 2002 at that point of time there is no Judgment of Annamalai University Represented by Registrar V. Secretary to Government, Information and Tourism Department and others (2009) 4 SCC 590.

79.It is the contention of the Learned Counsel for the Petitioner that any statute cannot affect a candidate's vested right and in the present case on hand, the 4th Respondent/Madurai Kamaraj University and the Tamil Nadu Government by means of G.O.Ms.No.64 P & AR (R) Department dated 02.02.1996 have recognised the Undergraduate /Postgraduate Degrees under Open University System of Madurai Kamaraj University viz., B.A., B.Sc., B.Com., B.B.A., and M.A., M.L.S. M.Com., as equivalent to the corresponding Undergraduates/ Postgraduates Degrees obtained through regular course of study for the purpose of employment in public services and therefore, a vested right cannot be taken away by relying upon a subsequent event.

80.Apart from the above, it is the submission of the Learned Counsel for the Petitioner that the principles of Equity, Estoppel and Legitimate Expectation would prevent the applicability of such retrospective operation of the decision in Annamalai University V. Secretary to Government Information and Tourism Department & others (2009 (4) SCC 590).

81.The Learned Counsel for the Petitioner advances an argument that after permitting the Petitioner to take part in the Sub Inspector selection written examination and the interview, it is not open to the concerned authorities to now take a different stand that the M.A. degree obtained through Open University System of Madurai Kamaraj University, Tamil Nadu is not a valid degree.

82.The Learned Counsel for the Petitioner relies on the Division Bench decision of this Court in K.Sakthi Rani V. Secretary, Bar Council of Tamil Nadu, Chennai and others (2010) 4 MLJ 849 wherein in paragraph Nos.83 to 92 it is observed as follows:

"83. Applying the above said principles to the facts of the present case, we are of the opinion that the doctrine of legitimate expectation also would be applicable to the present case on hand, since the petitioners' expectation to get enrolled is a legitimate one after allowing them to complete the law course.

84. The facts narrated above would clearly show that the equity certainly lies with the petitioners.

85. In Guru Nanak Dev University v. Sanjay Kumar Katwal and another reported in (2009) 1 Supreme Court Cases 610, the Honourable Apex Court has applied the equity in a case where a candidate with Open University decree, was allowed to complete the course since he was on the verge of the completion.

86. Similarly, the Division Bench of this Court in State of Tamil Nadu v. Sr.S.Sagayarani reported in (2009) 5 MLJ 652, has held that in a case, admission was wrongly given by the authorities, thereafter, they cannot go back and say at the time of completion that the said admission was wrong.

87. In the present case on hand, the petitioners have competed with the regular students and completed the course. The petitioners also got entry by way of open competition and it is nobody's case that their entry to the Law College is otherwise irregular.

88. The Honourable Apex Court in Employees' State Insurance Corporation and others v. Jardine Henderson Staff Association and others reported in (2006) 6 Supreme Court Cases 581, has held that even in a case where a notification is valid, the power under Article 226 of the Constitution of India can be exercised by the High Court to hold that such a notification has to be applied prospectively. It is a well settled principles of law that the power under Article 226 of the Constitution of India can be exercised when there is a grave injustice done to a party. Such a power can also be exercised de hors the statutory provisions.

89. The Honourable Apex Court, in a recent judgment in State of West Bengal v. Committee for Protection of Democratic Rights reported in 2010(2) SCALE 467, has held as follows:

"35. As regards the power of judicial review conferred on the High Court, undoubtedly they are, in a way, wider in scope. The High Courts are authorised under Article 226 of the Constitution, to issue directions, orders or writs to any person or authority, including any government to enforce fundamental rights and, "for any other purpose". It is manifest from the difference in the phraseology of Articles 32 and 226 of the Constitution that there is a marked difference in the nature and purpose of the right conferred by these two Articles. Whereas the right guaranteed by Article 32 can be exercised only for the enforcement of fundamental rights conferred by Part III of the Constitution, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights, but "for any other purpose" as well, i.e. for enforcement of any legal right conferred by a Statute etc."

90. Therefore, we are of the considered view that even while upholding the power of the Bar Council of India in issuing the resolution and also in framing the rules, suitable relief can be moulded to the petitioners on the facts of the present case available on record in exercise of the powers conferred under Article 226 of the Constitution of India. Hence, we are of the view that the petitioners are entitled to succeed regarding Points (viii), (ix) and (x).

91. It is said that law and equity operate on distinct and separate fields. It is also a well settled principle of law that when there is a conflict between the law and equity, law would prevail. It is said "two streams have met and now run in the same channel, but their waters do not mix." However, law has to be understood to mean, the law in accordance with the Act, rules and regulations which can be described as 'common law'. In other words, equity would only mean 'natural justice'. In that sense, broadly speaking, equity would also form part of law. However, by applying the facts of the present case as discussed above to the principles of estoppel, legitimate expectation and equity and on a consideration of the hardship and agony that would be caused to the petitioners, we are of the opinion that in the present case, the petitioners are entitled to get the relief based upon the above said principles of law.

92. On consideration of the above said factual and legal issues, the following conclusions are arrived at:

(i) The Rules of Legal Education, 2008, are framed in accordance with the powers conferred under Sections 7(1)(h)&(i), 24(1)(c)(iii) and (iii a), 49(1)(af), (ag) and (d) of the Advocates Act, 1961 and hence, they are constitutionally valid; (ii) Explanation to Rule 5 of the Rules of Legal Education, 2008, is neither contrary to Section 24(1) of the Act nor beyond the rule making power conferred on the Bar Council of India under section 49 of the Advocates Act, 1961; (iii) The Bar Council of India is well within its rights to insist that a person having a decree from the Open University under the Indira Gandhi National Open University Act, 1985, cannot be allowed to join a law course in a Law University recognised by it and the Bar Council of Tamil Nadu and Bar Council of India can also refuse to enroll such a person who joins the law course and completes the same. The judgment of the Honourable Apex Court in Annamalai University represented by Registrar v. Secretary to Government, Information and Tourism Department and others, is binding on the Bar Council of Tamil Nadu and Bar Council of India insofar as the applicability of the University Grants Commission Act and Regulations, but the said judgment cannot be applied to the petitioners who have already obtained the law degree. The Rules of Legal Education, 2008, cannot be made applicable to the case of the petitioners who had already completed their law course at the time of coming into force of the Rules; (iv) The petitioners are not entitled to succeed based upon Article 14 of the Constitution of India;

(v) The petitioners are entitled to succeed on the principles of promissory estoppel, acquiescence, legitimate expectation and equity."

83.Also, in the aforesaid Judgment, in paragraph 92(vi) it is among other things mentioned that 'the writ petitions filed in W.P.No.26257 of 2009 and etc. challenging the order of cancellation of enrollment by the Bar Council of Tamil Nadu, are allowed and the impugned orders passed are set aside and the Bar Council of Tamil Nadu is directed to issue Enrollment Certificates to the petitioners as in the case of other candidates.'

84.The Learned Counsel for the Respondents 1 and 3 submits that the Regulations framed by the 2nd Respondent/UGC to determine the standards of education has become part of the University Grants Commission Act and the same are applicable to open universities as well as the conventional formal universities and to lend support to his contention, he cites the decision of Hon'ble Supreme Court in Annamalai University V. Secretary to Government Information and Tourism Department & others 2009 (4) SCC 590 at page 592, 593 wherein it is held as follows:

"The UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of Schedule VII to the Constitution whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system was rigid inter alia in respect of attendance in classrooms. Combinations of subjects were also inflexible. However, in the matter of ensuring the standard of education, the alternative system envisaged under the Open University Act was not in substitution of the formal system. The distinction between a formal system and an informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating corrdination and determination of standards in universities. The purport and object for which it was enacted must be given full effect. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by UGC in terms of Sections 26(1)(e),(f),(g) and (h) of the UGC Act are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instruction. Such minimum standards of instruction are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. Subordinate legislation when validly made becomes part of the Act. The functions of UGC are all-pervasive in respect of the matters specified in Sections 12-A(1)(d) and 12-A(2)(a) & (c) of the Act.

Indisputably, as contended by the appellant as also the Solicitor General that the Open University Act was enacted to achieve a specific object. It opened new vistas for imparting education in a novel manner. Students did not have to attend classes regularly. They had wide options with regard to the choice of subjects but the same would not mean that despite a parliamentary Act having been enacted to give effect to the constitutional mandate contained in Entry 66 of List I of Schedule VII to the Constitution, activities and functions of the private universities and open universities would be wholly unregulated. The Regulations are clearly aimed at the open universities. When the regulations are part of the statute, it cannot be said that the same which operate in a different field would be ultra vires the parliamentary Act. IGNOU has not made any regulation; it has not made any Ordinance. It is guided by the Regulations framed by UGC. The validity of the provisions of the Regulations has not been questioned either by IGNOU or by the appellant University. From a letter dated 5.5.2004 issued by one H, who was not only the Vice-Chancellor but also the Chairman of DEC of IGNOU it is evident that the appellant University had violated the mandatory provisions of the Regulations. The amplitude of the provisions of the UGC Act vis-a-vis the universities constituted under the State Universities Acts which would include within its purview a university made by Parliament also is now no longer res integra. Hence, the UGC Act, having been enacted by Parliament in terms of Entry 66 of Lit I of Schedule VII to the Constitution [in respect of the subject-matter of List I Entry 66 i.e. Coordination and determination of standards inter alia for higher education] would prevail over the Open University Act which has been enacted under List III Entry 25. [Ed.:See case law discussed in paras 46 to 49]."

85.In the aforesaid decision of Hon'ble Supreme Court at page 592 it is observed that 'Master's Degree obtained in Open University System without obtaining a first (Batchelor's) degree, rightly held by High Court to be not a valid one.'

86.It is to be noted that the University Grants Commission as per its Letter No.F.1-30/96 (CPP-I) dated 1.2.1998 has informed the Registrars of various Universities as follows:

"No university may be allowed to enroll candidates for one sitting of MA/MSc/MCom from the academic year beginning in 1998 onwards and the students already registered may be allowed to complete their course by 30.6.1999, and the degree awarded to these candidates upto that period may be treated as valid."

87.Again, based on the requests and representations received from numerous individuals, the 2nd Respondent/UGC reiterated its earlier position in regard to the validity of MA/MSc/MCom degree (one sitting) in its Letter No.No.F.1-30/96 (CPP-II) dated 23.7.1998 to the Registrars of the universities.

88.The 2nd Respondent/UGC, through its letter dated 30.6.1999 addressed to the Universities, has reiterated that the candidates who had completed their BA under one sitting during the year 1998-1999 may be treated as valid.

89.It is to be borne in mind that the Statement of Objects and Reasons of the Open University Act indicates that the formal system of education has not been able to provide an effective means to equalise educational opportunities etc.

90.The provisions of University Grants Commission Act are binding on all universities whether it is conventional or open. The Regulations of the 2nd Respondent/UGC as per clauses (e),(f),(g) and (h) of sub-section (1) of Section 26 are of wide amplitude. As a matter of fact, the Regulations equally apply to open universities as also to formal conventional universities. It is needless for this Court to point out that in the matter pertaining to higher education, it is essential to maintain minimum standards of instructions which are to be defined by University Grants Commission. To put it shortly, the powers of UGC as per Sections 26(1)(f) and 26(1)(g) are very broad in nature.

91.The University Grants Commission Act operates in a different field. The said Act has been enacted with a view to make provision for coordination and determination of standards in universities and for that purpose, to establish a University Grants Commission, the University Grants Commission's directions are binding on IGNOU and indeed, Section 5(2) of the Open University Act will not alter the legal position in any manner.

92.In the Division Bench decision of this Court in N.Ramesh and others V. Sibi Madan Gabriel and others (2008) 3 MLJ 255 at page 256 it is held as follows:

"The provisions contained in the Regulations make it clear that in order to be eligible for obtaining a Master Degree through the Open University System or otherwise, the student concerned must have successfully completed the first degree. Inevitably the first question is to be decided in the negative. The conferment of Master Degree on students who do not have the "first degree" is clearly contrary to the Regulations of the UGC.

The Master's degree offered by Annamalai University to the persons who had not obtained the basic degree or the first degree were in direct conflict with the specific Regulations of the UGC holding the field. The contention of the Annamalai University that there has been implied relaxation of the requirement of Regulation-2 (proviso) is not acceptable.

There is nothing on record to indicate that at any time the UGC had either directly or even indirectly issued any letter or instruction permitting the candidates to appear in M.A. degree examination without the benefit of a first degree. On the other hand, the Regulations made it abundantly clear that no person was eligible to appear at the M.A. examination of the Open University, unless such person had obtained the first degree. Various correspondence only indicate that even the persons who had obtained the first degree not by completing three years degree course after +2 were required to undergo a bridge course for one year before becoming eligible for being registered as a candidate for M.A. examination of the Open University System. Even the correspondence relied upon by the counsel for Respondent No.4 or Respondent No.6 indicate that the entire correspondence was relating to either the completion of the bridge course or relating to the first degree and there is not even a single correspondence on the record to indicate that directly or even indirectly any competent authority of the UGC had ever approved the system of allowing persons to appear for M.A. degree examination, even though such persons had not obtained the first degree. Mere silence cannot be construed as implied exemption."

93.The Learned Counsel for the Respondents 1 and 3 seeks in aid of the Judgment of Hon'ble Supreme Court in Guru Nanak Dev University V. Sanjay Kumar Katwal and another in Civil Appeal No.2252 of 2006 wherein it is inter alia held in paragraph 13 to 15 as follows:

"13. The appellant university has categorically stated that while regular courses and correspondence courses in MA conducted by Annamalai university are recognized as equivalent to the corresponding M.A. course of the appellant university, M.A. (OUS) course through distance education conducted by Annamalai university is not recognized by the appellant university as equivalent to its M.A. course. The first respondent has passed his M.A. (OUS) from Annamalai University through distance education. Equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. The first respondent has not been able to produce any document to show that appellant university has recognized the M.A. English (OUS) of Annamalai University through distance education as equivalent to M.A. of appellant university. Thus it has to be held that first respondent does not fulfil the eligibility criterion of the appellant university for admission to three year law course.

14. The first respondent made a faint attempt to contend that the distance education system includes `correspondence courses' and therefore recognition of M.A. (correspondence course) as equivalent to M.A. course of appellant University, would amount to recognition of M.A. - OUS (distance education) course, as an equivalent. For this purpose, he relied upon the definition of "distance education system" in section 2(e) of Indira Gandhi National Open University Act, 1985. But there is nothing to show that Annamalai University has treated correspondence course and OUS (distance education) course as the same. What is more important is that the appellant university does not wish to treat correspondence course and Distance Education Course as being the same. That is a matter of policy. Courts will not interfere with the said policy relating to an academic matter.

15. Therefore the appeal of the University deserves to be allowed. Accordingly, the judgment of the High Court holding that M.A. English degree (OUS) granted by Annamalai University through distance education is equivalent to MA degree of appellant university, is set aside."

94.This Court worth recalls the decision of Hon'ble Supreme Court in Annamalai University V. Secretary to Government Information and Tourism Department & others 2009 (4) SCC 590 at page 604 wherein at paragraph 33 it is observed as follows:

"33.Indisputably, the fact that the appellant University had been granting postgraduate degrees to the candidates concerned although they had not completed three years' course in violation of Regulation 2 of the 1985 Regulations came to the notice of the UGC as also the IGNOU officials. A meeting was held in March 2004. It was agreed in the said meeting that the admission to the Masters degree programme under the OUS without requiring the three years' graduate degree qualification be discontinued with effect from July 2004 as would appear from a letter issued by IGNOU to the Vice-chancellor of the appellant University, the relevant portion whereof reads as under:

'In the meeting, both the undersigned as the Chairman, DEC and the Chairman, UGC had emphasised the need to discontinue the Masters degree programme without requiring 3 years' graduate degree qualification under open education stream, which is in practice in some universities of Tamil Nadu. We drew your kind attention to the UGC Regulations, 1985 regarding the minimum standard of instructions for the grant of the first degree through non- formal/distance education dated 25.11.1985 according to which no student shall be eligible to seek admission to the Masters degree programme who has not completed first degree course of three years' duration. This clearly stipulates that the practice of admitting students of Masters degree programme who have not undergone 3 years' undergraduate programme successfully is against the provisions of the above Regulations. In view of this, it was agreed in the meeting of 11.3.2004 that new admission to the Masters degree programme under open education scheme as prevailing in some universities in Tamil Nadu should be discontinued with effect from the forthcoming session starting from July 2004. I would feel grateful to receive your confirmation on this matter'."

95.This Court aptly points out the observation of the Hon'ble Supreme Court, in the aforesaid decision, at paragraph 34 wherein it is held thus: "34.It, however, appears that the degrees obtained after 1.3.1995 up to 20.6.2007 have been recognised by DEC as would appear from a letter issued by the said DEC dated 21.7.2008, which reads as under:

"This has reference to your application requesting for post facto recognition of the Distance Education Council for programmes offered through distance mode by the Directorate of Distance Education of your University. In this connection, we would like to inform you that based on the recommendation of the Expert Committee that visited your University, the Chairman, Distance Education Council has accorded post facto approval to your University for programmes offered through distance mode with effect from 1.3.1995 to academic year 2006-2007. Prior to March 1995, there was no system for giving recognition to correspondence courses or distance education programmes and therefore the issue of post facto approval for such courses during that period does not arise. The certificates issued by the University stand automatically recognised if they were approved by the relevant authorities of the University.

Further, we would also like to inform that, it is the responsibility of the University to follow the norms prescribed by the regulatory bodies concerned or seek their recognition for professional/ technical programme(s) as per the requirements. Getting approval of the statutory apex body concerned for relevant programme(s) will be the sole responsibility of the University. The territorial jurisdiction for offering distance education would be as per the Acts and statutes of your University."

96.It is quite relevant for this Court to point out the Hon'ble Supreme Court decision in (2009) 4 SCC 590 at page 594 (cited supra), wherein it is held as follows:

"Relaxation, furthermore, cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an administrative authority, it would be void. Such a void order cannot be validated by inaction.

The purported post facto approval granted to the appellant University of programmes offered through distance modes is not valid. DEC may be an authority under the Open University Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5.5.2004 that the appellant University had no jurisdiction to confer such degrees, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of the UGC Act. When mandatory requirements have been violated in terms the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect."

97.As regards the plea of Estoppel, it is to be pointed out that the rule of Estoppel is based on Equity and Good Conscience. As a matter of fact, the Estoppel extends not only to a mans declarations and acts but also to those of all individuals through whom he claims. An Estoppel appears to be when any consequences of some previous act or statement of which an individual is either a party or privy, a person is precluded from showing the existence of a particular state of facts. In short, 'Estoppel is a complex legal notion, involving a combination of several elements - statement to be acted upon, again on the faith of it, resulting detriment to the actor. Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law. Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of Estoppel fails if the statement is not sufficiently clear and unqualified' as per decision Bl.Sriedhar V. K.M.Munireddy, AIR 2003 SC 578 (583).

98.There are three kinds of Estoppels. (1)By matter of Record; 2)By matter in writing; and 3)By matter in pais. [2 Coke on Litt 352a].

1.The Estoppel By Record or Judgment:-

The Estoppel By Record or Judgment means 'where a final decision has been pronounced by' a 'judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem, any person whatsoever, as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as the foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or to any affirmative defence, case, or allegation, if, but not unless, the party interested raises the point of estoppel at the proper time and in the proper manner' [Spencer Bower and Turner 'Res Judicata' 2nd Ed p. 9.]. Also, Sections 11 - 14 Civil Procedure Code and Sections 40 to 44 of the Evidence Act deal with this kind of Estoppel. Estoppel by matter of record is mainly relied to the effects of judgments in rem and in personam and admissibility in evidence.

2.Estoppel by Deed:-

Estoppel by Deed is based on the principle that when a person has entered into a solemn engagement by a deed under seal with another party, he or the individuals claiming under or through him, shall not be allowed to set up the contrary of his assertion in the deed etc.

3.Estoppel in pias or Estoppel by Conduct:-

Estoppel in pais is now known as estoppel by conduct or representation. It embraces all acts or statements of a party upon the faith of which another reasonable party has been led to act and to change his position and which it will be unfair to permit the first party to deny. Estoppel by conduct may arise from agreement, misrepresentation, or negligence. Conduct by act or omission amounting to representation has been placed on the same pedestal as an express representation.

99.It is to be pointed out that there is no question of Estoppel can ever arise when both parties are labouring under the mistake of law as per decision of Hon'ble Supreme Court in Sales Tax Officer V. Kanhaiyalal AIR 1959 SC 135.

100.As regards the Doctrine of Legitimate Expectation, the same will apply only when a practice is found to be prevalent/prevailing. Undoubtedly, it has a positive concept. However, the Hon'ble Supreme Court in Poonam Verma V. DDA, (2007) 13 SCC 154 (163) has held that '... But in a case of this nature where purported expectation is based on an illegal and unconstitutional order, the same is wholly inapplicable, as the same cannot be founded on an order which is per se illegal and without foundation.' Also, the Doctrine of legitimate expectation cannot be invoked against the legislation as the same applies in cases of administrative decisions as per decision Rajesh Gupta V. The State of Uttar Pradesh, 2010 (1) All LJ (NOC) 2 (All-DB).

101.In the decision G.Sreenivasan and others V. Principal, Regional Engineering College, Rourkela and others, etc. AIR 2000 Ori 56, at page 57 & 58 it is held as follows:

"A Regulation of a Regional Engineering College provided for rechecking of papers in which the student has failed. As rechecking procedure was time consuming one and results of rechecking were not published before admission to the higher semesters, students requested the Principal to allow them to continue in the higher semester, pending publication of results of rechecking. The applicants gave an undertaking to the effect that if their marks in the answer scripts were not enhanced, they will leave the higher semester and continue in the lower semester. Aforesaid request of the students was accepted by the Principal and the students were allowed to continue in higher semesters pending publication of rechecking of answer scripts. This system was introduced in the greater interest of the students. However, after some years it was found that the intended results were not achieved, and a chaotic situation was created in the administration. Keeping that in view, Academic Committee stopped the facility and the Principal of the College stopped the practice of rechecking. Held, that the principle of legitimate expectation had no application to the facts of the case. The regulation being clear and rechecking as permitted being not in terms of any provision holding the field could not bring in application of principles relating to promissory estoppel." Also, in the aforesaid decision, it is observed as follows: "The principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to dealings which have been taken place between the parties. The doctrine of promissory estoppel is now well established one in the field of administrative law. It is equally settled law that the promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. Doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not, in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public authority."

102.At this stage, this Court points out the Division Bench Order of this Court dated 10.02.2011 in W.P.No.18729 of 2010 between T.L.Muthukumar and 4 others V. The Registrar General, High Court, Madras and another wherein in paragraph 14 it is observed as follows:

"14. From a perusal of Clause 2 of the 1985 Regulations and the ratio decided by the Supreme Court as quoted hereinbefore, it is manifest that for the purpose of obtaining a Post Graduate Degree a candidate has to satisfy and comply the mandatory requirements provided therein. According to the rule, no candidate shall be eligible for award of first degree unless he has successfully completed 12 years schooling. Similarly, no student shall be eligible to seek admission to the Master's course in any faculty, who has not successfully pursued the first degree course of three years duration.

103.Subsequent to the decision rendered by the Hon'ble Supreme Court in Annamalai University case (2009) 4 SCC 590, the Tamil Nadu Government has issued a G.O.No.107, Personnel and Administrative Reforms (M) Department dated 18.08.2009 recognizing those degrees obtained through Open University only after the person having passed Secondary School Examination (10th Standard) and Higher Secondary Examination (+2) alone for appointment/promotion in pubic service. The said G.O. is extracted as below:

"Public Services - Equivalent Qualification - Diploma/Degree/ Post Graduate degrees obtained from open universities after passing Higher Secondary School Education (+2) - Recognition to get employment in public services - orders - issued. ------------------------------------------------------------------------ ---

Personnel and Administrative Reforms (M) Department

G.O. (Ms). No.107 Date : 18.8.2009

Aavani - 2,

Thiruvalluvar Aandu 2040

Read :

1. G.O. (Ms). No.180, Personnel and Administrative Reforms . Department dated 22.9.2000.

2. Letter No.R.E.D./301-6/2004, dated 17.7.2004, from Chief General Manager, Tamil Nadu, BSNL Ltd.

3. D.O. letter No.1745/RND-F 1/2007 dated 5.4.2007 from the Secretary, Tamil Nadu Public Service Commission.

4. D.O. Letter No.5280/RND F.1/2007 dated 27.9.2007 from the Joint Secretary, Tamil Nadu Public Service Commission.

---------------

ORDER :

In the Government Order, first read above, orders have been issued granting approval for employment in Public Services considering the degrees conferred by Open Universities in Tamil Nadu recognized by the University Grants Commission, in respect of Diploma course, Under-Graduate course and Post- Graduate course as equivalent to that of the Diploma course, Under-Graduate course and Post-Graduate course given by the said universities through Regular stream.

2.The Chief General Manager, BSNL Tamil Nadu Circle, in the letter second read above, has requested for clarification as to whether the persons who have obtained a degree in B.Sc., B.A., etc., through Open Universities without a pass in higher secondary examination (+2) shall be considered as having passed the higher secondary examination, for the post for which the minimum educational qualification is fixed as a pass in Higher Secondary Education and can be considered for the promotion posts in government departments.

3.The Secretary, Tamil Nadu Public Service Commission was requested to forward the recommendation made by Equivalence Committee on the aforesaid proposal. The Equivalence Committee recommended that the persons who have obtained B.Sc., B.A. degree in Open Universities without having passed the higher secondary school examination, cannot be considered either for employment or promotion in government service by considering them to have passed the +2 examinations of the State Government. Even when the said proposal was sent again for the recommendation of the Equivalence Committee, it insisted on the decision already taken.

4.The Government carefully examined this recommendation and having decided to accept the recommendation of the Equivalence Committee issues an order recognizing the degrees in Diploma/Degree/Post-Graduate degree obtained through Open Universities only after having passed secondary school examination (10th Std.) and higher secondary school examination (+2) alone for appointment/ promotion in Public Services.

// By Order of the Governor//

-Sd-

Secretary to Government"

104.In the decision Professor Yashpal V. State of Chhattisgarh, AIR 2005 SC 2026, the Hon'ble Supreme Court has considered the objects and reasons for enacting the University Grants Commission Act, 1956 and the various functions of the commission in maintaining the standards in universities, the effect of degree conferred by university and held hereunder:

"38. A degree conferred by a university is a proof of the fact that a person has studied a course of a particular higher level and has successfully passed the examination certifying his proficiency in the said subject of study to such level. In the case of a doctorate degree, it certifies that the holder of the degree has attained a high level of knowledge and study in the subject concerned by doing some original research work. A university degree confers a kind of status upon a person like a graduate or a postgraduate. Those who have done research work and have obtained a PhD, DLitt or DSc degree become entitled to write the word "Doctor" before their names and command certain amount of respect in society as educated and knowledgeable persons. That apart, the principal advantage of holding a university degree is in the matter of employment, where a minimum qualification like a graduate, postgraduate or a professional degree from a recognised institute is prescribed. Even for those who do not want to take up a job and want to remain in a private profession like a doctor or lawyer, registration with the Medical Council or the Bar Council is necessary for which purpose a degree in medicine or law, as the case may be, from an institution recognised by the said bodies is essential. An academic degree is, therefore, of great significance and value for the holder thereof and goes a long way in shaping his future. The interest of society also requires that the holder of an academic degree must possess the requisite proficiency and expertise in the subject which the degree certifies.

39. Mere conferment of degree is not enough. What is necessary is that the degree should be recognised. It is for this purpose that the right to confer degree has been given under Section 22 of the UGC Act only to a university established or incorporated by or under a Central Act, Provincial Act or State Act or an institution deemed to be a university under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. Sub-section (3) of this section provides that "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette. The value and importance of such degrees which are recognised by the Government was pointed out by a Constitution Bench in S.Azeez Basha v. Union of India."

105.In the aforesaid decision, the Hon'ble Supreme Court has also considered Entry-66 pertaining to coordination and determination of standards in institution for higher education and observed as follows: "46.Entry 66 which deals with coordination and determination of standard in institutions for higher education or research and scientific and technical institutions is in the Union List and Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (see Prem Chand Jain v. R.K.Chhabra and Osmania University Teachers' Assn. v. State of A.P.). The Act has been enacted to ensure that there is coordination and determination of standards in universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various universities in the country. In order to achieve the aforesaid objectives, the role of UGC comes at the threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like classrooms, libraries, laboratories, well-equipped teaching staff of requisite calibre and a proper student-teacher ratio. For this purpose, the Central Government has made a number of rules in exercise of powers conferred by Section 25 of the UGC Act and the Commission has also made regulations in exercise of power conferred by Section 26 of the UGC Act and to mention a few, the UGC Inspection of Universities Rules, 1960, the UGC Regulations, 1985 Regarding the Minimum Standards of Instructions for the Grant of the First Degree, UGC Regulations, 1991 Regarding Minimum Qualifications for Appointment of Teachers in Universities and Colleges, etc. UGC with the approval of the Central Government and exercising power under Section 22(3) of the UGC Act has issued a schedule of degrees which may be awarded by the universities. The impugned Act which enables a proposal on paper only to be notified as a university and thereby conferring the power upon such university under Section 22 of the UGC Act to confer degrees has the effect of completely stultifying the functioning of the University Grants Commission insofar as these universities are concerned. Such incorporation of a university makes it impossible for UGC to perform its duties and responsibilities of ensuring coordination and determination of standards. In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them.

47. The inter se evaluation of merit of candidates is often required to be done while making selection for some higher or specialised course of study or in the matter of employment. One of the important functions to be performed by UGC is coordination and determination of standards in institutions for higher education so that some kind of uniformity is maintained in level of teaching and examination and also award of degrees by various universities."

106.As far as the present case is concerned, even though the Commandant, 66 Bn BSF, by his order dated 05.10.2000, has accorded the permission to the Petitioner for appearing in M.A. examination, the fact remains that the 1st Respondent has, in fact, on 05.03.2001 has sought clarification as to whether the Petitioner will be eligible for appearing for the post of ASI/Clk for which minimum educational qualification is 10 +2, since he is doing the postgraduate degree without 10 +2 or B.A. Further, the order of the Commandant (Staff), Government of India, Ministry of Home Affairs, Directorate General, Border Security Force, (Staff Section), dated 27.06.2001 in Letter No.F.60011/22/89- Staff/BSF/8498, though speaks of 10 + 2 or equivalent is the minimum qualification prescribed for the post of ASI/Clk in BSF and therefore, candidates with Graduation and Post Graduation, are eligible for appearing in the test etc. and the subsequent factum of the Petitioner successfully completed M.A. course through distance education and the same being recorded in his Service Record as his qualification is M.A. etc. will not enure to the benefit of the Petitioner since the Petitioner has obtained M.A. degree under Open University System of Madurai Kamaraj University without completing the First Degree course as per University Grants Commission Regulations and the fact remains that the University Grants Commission Regulations will have to be adhered to by all the Universities in the country. This is because of the fact that the 2nd Respondent/UGC established as per Section 4 of the UGC Act has a duty besides a responsibility to determine and coordinate the standard of teaching curriculum and also the level of examination in various universities in the country, as opined by this Court.

107.In this connection, one cannot loose sight of an important fact that the 2nd Respondent/UGC, in its Letter No.F.1-17/2005 (CPP-II) dated 03.01.2007 addressed to the Assistant Commandant (SSB), Government of India, Directorate General Border Security Force, New Delhi has, inter alia, stated that 'the Master's degree awarded by Madurai Kamaraj University to any student who has not successfully completed three years of an under graduate degree is in contravention of UGC regulations.'

108.Also, the 3rd Respondent, in its letter dated 30.11.2006 addressed to the Commandant, (SSB), Ministry of Home Affairs, Directorate General, Border Security Force, New Delhi, has, among other things, stated that '... DEC has, however, informed that the programmes offered by Madurai Kamaraj University, Madurai through distance education mode have not been recognised by them.'

109.Ordinarily, the plea of Estoppel is to be specifically pleaded and if the said plea is not projected in the pleadings or in issue, it cannot be availed of later.

110.Furthermore, there can be no Estoppel arising out of the legal proceedings when the truth of the matter appears on the fact of the proceedings as per decision Bai Mokand V. S T Committee, AIR 1935 L 960; Sridhar V. Mohant, 12 OC 236: 3 IC 549, or from ignorance of law which both parties must be presumed to know as per decision Gurulingaswami V. Kamalsakshmma, 18 M 58, or when both parties have equal means of knowledge both of the facts and the law Teckchand V. Gopal, 46 PR 1912: 12 IC 482.

111.On a careful consideration of respective contentions and on an overall assessment of the conspectus of the facts and circumstances of the present case, this Court comes to an inevitable conclusion that the University Grants Commission Regulations do not visualise conferment of a Master's Degree through Open University System unless a person has got the First Degree either as a formal student or under non-formal/distance education system. In other words, the ingredients of University Grants Commission Regulations candidly make it clear that if a student in order to be eligible for obtaining a Master's Degree through Open University System or otherwise, he ought to have successfully completed the First Degree. As a logical corollary, the conferment of Master Degree on the students who do not possess the 'First Degree' is in negation of the Regulations of the University Grants Commission, in the considered opinion of this Court. As such, this Court rejects the contention of the Petitioner side as regards the plea of Equity, Estoppel and Legitimate Expectation and a vested right being created etc. Since the University Grants Commission Regulations are to be followed by the Universities in India, the plea of the Petitioner that the order passed by the Deputy Inspector General (PERS) on the basis of the clarification furnished by the University Grants Commission & Human Resource Development run repugnant to the G.O.Ms.No.64, P & AR (R) Department, dated 02.02.1996 and also the Statutory Regulation of Madurai Kamaraj University (established by the Act enacted by the Tamil Nadu Government) cannot stand a moments scrutiny in the eye of law. Resultantly, the writ petition fails.

112.In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petitions are also dismissed.

Sgl/gsr

To

1.The Inspector General

The Directorate General

Border Security Force,

Block No.10, CGO Complex

Lodhi Road, New Delhi- 110 003.

2.The Under Secretary,

University Grants Commission,

Bahadurshah Jafar Marg,

New Delhi - 110 002.

3.Under Secretary to the Government of India,

Ministry of Human Resource Development,

Department of Higher Education,

(Distance Learning Division),

Shastri Bhavanm New Delhi.

4.The Director,

Director of Distance Education,

Madurai Kamaraj University,

Palkalai Nagar,

Madurai - 625 023.