Final Year Students Exam: Ministry of Home Affairs (‘MHA’) vide notification dated 06.07.2020 permitted to conduct the exams by Universities and Institutions and also made obligatory for the universities to conduct final year students exam as per UGC guidelines and Standard Operating Procedure (SOP) approved by the Union Ministry of Health and Family Welfare. In furtherance of the aforementioned notification, UGC vide notification dated 06.07.2020 has issued revised guidelines for University examination for terminal semester students whereby Universities are instructed to conduct exams in offline (pen & paper)/online/blended (offline + online) mode. Such hardships even led to some unfortunate incidents in the last few months. States like Maharashtra, Orissa, Rajasthan, West Bengal, Punjab, Haryana, Meghalaya, and Delhi have announced the cancellation of final year examinations due to Covid-19 pandemic. Therefore, after UGC’s guidelines, the legal hurdle has been arisen for taking decision on the issue of cancellation of final year examination. All these incidents have caused a big confusion among the majority of final year students in India.
On one hand many States are taking decision of canceling final year examination and on the other hand UGC has issued guidelines for compulsorily conducting the examination of final year students. All these controvert decisions are creating a legal hurdle. After perusing all these events, a common question arises that, who has final authority regarding conducting or cancelling the final year university examinations? We have to understand the provisions of central as well as state legislation in this concern.
The Central legislation:
The Central legislation i.e. University Grants Commission Act, 1956 (for the sake of convenience hereinafter called as UGC Act) is an Act to make provisions for co-ordination and determination of the standards in Universities and for that purpose, to establish a University Grants Commission (UGC),whereas the UGC Act is established by central government by notification in official gazette.
As per the Section 2(f) of UGC Act, 1956, “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act.
As per the Section 3 of UGC Act, 1956, “The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act.”
As per the University Grant Commission in exercise of their powers and functions under Section 12(d) –states that, “the duty of commission in consultation with the Universities or other bodies concerned and maintenance regarding standards of teaching, examinations etc. in universities and for that purpose, commission may “recommend to any University the measures necessary for improvement of University education and advise the University upon the Action to be taken for the purpose of implementing such recommendations.”
As per the above-mentioned section, UGC may recommend any University under this Act as to conduct of examinations in order to fulfill measures necessary for improvement of University education and give advice about the same. “If any University fails to comply with recommendations of the Commission under section 12 and others after taking into consideration the cause, if any, shown by the University [for Such failure or Contravention] may withhold from the University the grants proposed to be made out of the Fund of the Commission in accordance with section 14 of UGC Act.”
Later the section 25(2) (f) and 25(2) (k) of the UGC Act, 1956, provide powers to the central government to make rules, some of which have been stated below;
“f to carry out the purpose of the Act, “the return and information which are to be furnished by Universities in respect of their financial position or standards of teaching and examination maintained therein;
k. any other matter which has to be, or may be, prescribed.”
Furthermore, Section 22(1) of the UGC Act, 1956, speaks about Rights of conferring the degree.
“The right of conferring or granting degrees shall be exercised only by 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.”
In the above-mentioned section of the UGC Act, the rights of conferring degrees are wasted with their respective Act under which the particular of university has been established.
Furthermore, according to Section 26(1) (f) of UGC Act, 1956, the commission may make regulations and rules “defining the minimum standards of instructions for the grant of any degree by any university”.
In exercise of the powers conferred by this above mentioned the UGC has formulated resolutions in the year 2003 for Minimum Standards of Instruction for the Grant of the First Degree and Minimum Standards of Instruction for the Grant of the Master Degree and has specifically mentioned under the heading of ‘Examination and Evaluation’, and some of them are as follows:
- The university shall adopt the guidelines issued by the UGC and other statutory bodies concerned from time to time in respect of conduct of examinations.
- There shall be continuous sessional evaluation in each course in addition to trimester/semester/year-end examinations, and the weightage for sessional evaluation and examination in respect of each course shall be prescribed by the appropriate academic body, and made known to the students at the beginning of the academic session.
- If the fieldwork or project work is prescribed as an integral part of a course, the weightage assigned to it should reflect the time spent on it.
- The tests and examinations shall aim at evaluating not only the student’s ability to recall information, which he/she had memorized, but also his/her understanding of the subject and ability to synthesize scattered bits of information into a meaningful whole. Some of the questions shall be analytical and invite original thinking or application of theory.
From the above regulation it reveals that, UGC has made it clear about the conduct of examinations.
Various state laws:
In India, the respective states have its own specific public and private universities Act and wide powers have been delegated to respective State Governments, Chancellors and Vice Chancellors on the issues of examination. The state universities Act of various states provides power to respective state governments and chancellors more specifically; power of granting degrees to students by taking examinations, or evaluation. The state government may issue ordinances and regulation regarding the same. As a result of this few state governments have taken decision of its own regarding cancellation or conducting examinations. For example in state legislations,
- The Delhi University Act, 1922 u/s Section.30(c);
- Karnataka State Universities Act, 2000 u/s Section.4(2), Section(9);
- West Bengal Universities and Colleges (Administration and Regulation) Act, 2017 u/s Section.18, 19, 20;
- The Punjabi University Act, 1961 u/s Section.(4)(4), Section.17(c), Section.24;
- Maharashtra Public Universities Act, 2016: Section 5(21), Section. 8(7).
After carefully perusing UGC Act, 1956, more specifically regulation of 2003(formulated under the said Act) and various state laws, the question appears that, whether the provisions, regulations or guidelines issued by UGC to the universities are mandatory or directory?
For understanding the above issue, we have to look into the reportable judgment of Hon’ble Supreme Court if regulations of UGC are binding.
Hon’ble Supreme Court in Kalyani Mathivananvs vs. K V Keyaraj And Ors. has held that:
The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-section (1) of Section 26 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 instructions. Such minimum standards of instructions 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. The powers of UGC under Sections 26(1) (f) and 26(1) (g) are very broad in nature. Subordinate legislation as is well known when validly made, becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all-pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12A and clauses (a) and (c) of sub-section (2) thereof.”
Hon’ble Supreme Court has held in this judgment that, UGC Regulations, 2010 [published in power exercised under section 26 of UGC Act is not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless State Government wish to adopt and implement the Scheme subject to the terms and conditions therein.
UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does not arise. Once it is adopted by the State Government, the State Legislation is to be amended appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation.
After perusing the above reportable judgment it seems that, if state government adopts the regulation made by UGC u/s. 26(1) (f) then it becomes mandatory to the state to follow the guidelines issued by UGC. Accordingly after summarizing it seems that the guidelines regarding the conduct of examinations becomes mandatory for that respective states and universities who have adopted regulation of 2003 [under section 26 of UGC Act] which is discussed and stated above.
Education, more specifically higher and technical education is listed in concurrent list under schedule VII of the Constitution of India. As it is listed in concurrent list both I.e State and Central government has powers to make rules regarding the same. But Hon. Supreme court has made it clear Kalyani Mathivanan vs. K V Keyaraj And Ors that central legislations will override the state laws on subjects like university and education where both have the power to legislate
Powers under Disaster Management Act:
The Centre has invoked ‘Disaster Management Act’, 2005 and ‘Epidemic Diseases Act’, 1897, through which the State Governments as well as Central Government for the purpose of assisting and protecting the community affected by disaster or providing relief to such community or, preventing or combating disruption or dealing with the effects of any threatening disaster situation may take necessary Actions through the Centre or State Executive Committee.
Section. 72 of Disaster Management Act, 2005 gives overriding effect to the said law. It states that The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Further Section. 64 of the said Act, provides provision for making or amending rules, etc., in certain circumstances, if it appears to the National Executive Committee, State Executive Committee or the District Authority, as the case may be, that provisions of any rule, regulation, notification, guideline, instruction, order, scheme or bye-laws, as the case may be, are required to be made or amended for the purposes of prevention of disasters or the mitigation thereof, it may require the amendment of such rules, regulation, notification, guidelines, instruction, order, scheme or bye-laws, as the case may be, for that purpose, and the appropriate department or authority shall take necessary Action to comply with the requirements.
The provisions of this Act gives powers to authorities with whom powers are delegated and when this Act is invoked then it should have overriding effect on all other laws in force.
The overall findings which have been presented suggests that respective states are taking decision on the basis of their respective state legislation for cancellation of examination and in the central the UGC has issued guidelines to conduct the examination hence, legal dispute may arose on the issue mentioned. Therefore, it is necessary to take firm decision. While perusing the UGC Act, 1956, we find that section 20 (1) and 20 (2) provide, that, central government may direct UGC and Universities in the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government and if any dispute arises between the Central Government and the Commission as whether a question is or not a question of policy relating to national purposes, the decision of the Central Government shall be final.
Therefore, the Central Government should take initiative for resolving the said issue and also taking into consideration all the state governments by directing states to submit the reports regarding the current situation in consultation with universities and issue necessary directions to maintain uniformity of decision in the nation by which there will not be any deprivation faced by any student and their future. By this uniform decision any right of these students will not be affected but if state governments take diverse decisions based on other legislations giving those powers, then the students may face problems.
[Prithviraj Borhade, Dayanand Kakade, Madhav Maral]
[The Authors are final year law students at Pune University
Views expressed here are personal only.
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