PRANEETH K. AND ORS. v. UNIVERSITY GRANTS COMMISSION (UGC) AND ORS.

A Commission will act as an expert body to advise the Central Government on problems connected with the co- ordination of facilities and maintenance of standards in Universities.”

53Copy pinpoint53. In Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh and Ors., (2013) 2 SCC 617, this Court had occasion to consider the provisions of National Council for Teacher Education Act, 1993 and the role of the State and Universities in the above regard. In paragraph 59, this court held that NCTE is constituted under the Central Act with the responsibility of maintaining standard of education hence the State and Universities cannot lay down any guideline or policy which would be in conflict with the Central statute or the standards laid down by the Central body. In paragraph 59, following has been laid down:- “59. The above enunciated principles clearly show that the Council is the authority constituted under the Central Act with the responsibility of maintaining education of standards and judging upon the infra-structure and facilities available for imparting such professional education. Its opinion is of utmost importance and shall take precedence over the views of the State as well as that of the University. The concerned Department of the State and the affiliating University have a role to play but it is limited in its application. They cannot lay down any guideline or policy which would be in conflict with the Central statute or the standards laid down by the Central body. State can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the Central body. In the present cases, there is not much conflict on this issue, but it needs to be clarified that while the State grants its approval, and University its affiliation, for increased intake of seats or commencement of a new course/college, its directions should not offend and be repugnant to what has been laid down in the conditions for approval granted by the Central authority or Council. G What is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of imparting of education properly and ensuring maintenance of proper standards of education, examination and infrastructure for betterment of educational system. Only if all these authorities work in a coordinated manner and with cooperation, will they be able to H achieve the very object for which all these entities exist.”

p. 959 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

54Copy pinpoint54. In another judgment of this Court in University Grants A Commission and Anr. Vs. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519, the qualifying criteria fixed by the UGC came for consideration. Bombay High Court had ruled out that UGC lacked the competence to fix the aggregate marks as the final qualifying criteria after the candidates obtained the minimum marks prescribed before the B declaration of result of N.E.T. examination. The judgment of the Bombay High Court was in appeal before this Court where this Court categorically laid down that UGC being an expert body is entrusted with duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. In paragraph 22, following was laid down :- C “22. We have elaborately referred to various statutory provisions which would clearly indicate that the UGC as an expert body has been entrusted by UGC Act the general duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in Universities. D It is also duty bound to perform such functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India. The UGC has also got the power to define the qualification that should ordinarily be required for any person to be appointed to the teaching staff of the University and to regulate the maintenance of standards E and coordination of work and faculties in the Universities.”

55Copy pinpoint55. This Court further held that in academic matters unless there is a clear statutory violation, this Court shall keep their hands off since the issues fall within the domain of the experts. In paragraph 31, following was laid down:- F

p. 960 Copy page pinpoint

A of academic experts who are more familiar with the problem they face, than the Courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any “qualifying B criteria”, which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a C direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India.” D

56Copy pinpoint56. Now, we come to the Revised Guidelines dated 06.07.2020, which is under challenge before us. The Guidelines dated 06.07.2020 were issued in continuation to earlier Guidelines dated 29.04.2020. The Guidelines dated 06.07.2020 provided that Universities are required to complete the examination by the end of September, 2020 in offline (pen E and paper)/online / blended (offline and online mode) all terminal semester/final year examinations 2020. The Guidelines dated 06.07.2020 intended that it is only after holding of terminal semester/final year examination, Universities may proceed to grant degrees. The challenge to Guidelines is on the ground that Guidelines are beyond the domain of F UGC and does not relate to “co-ordination and determination of standards in institution of higher education”. Undoubtedly, the UGC Act has been enacted in reference to Entry 66 List I where the preamble of the Act provides:- “An Act to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.”

57Copy pinpoint57. Section 12 which enumerates the functions of the Commission provides that it shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University

p. 961 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

education and for the determination and maintenance of standards of teaching, examination and research in Universities. The use of expression “examination” in Section 12 itself makes it clear that steps taken by the UGC under Section 12 may relate to the “examination as well”. In Professor Yashpal (supra) in paragraph 32, this Court has held that the standards of education in an institution depends on various factors, one of which includes “the standard of examinations held including the manner in which the papers are set and examined”.

58Copy pinpoint58. The sheet anchor of the argument as stressed by Shri Arvind P. Datar is the Constitution Bench judgment of this Court in Modern Dental College and Research Centre and Ors. Vs. State of Madhya Pradesh and Ors., (2016) 7 SCC 353. Learned senior counsel has relied on observation of this Court in paragraph 101. Relevant observation made in paragraph 101 is as follows:- “101. To our mind, Entry 66 in List I is a specific Entry having a very specific and limited scope. It deals with co-ordination and determination of standards in institution of higher education or research as well as scientific and technical institutions. The words “co-ordination and determination of standards” would mean laying down the said standards. Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc……..”

59Copy pinpoint59. To comprehend the import of the above observation made by this Court, we need to look into the issue, which has arisen for consideration in above case. The enactment, which came for consideration before this Court in the above case was “Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007”. The aforesaid Act, 2007 as well as the Madhya Pradesh Private Medical and Dental Postgraduate Course Entrance Examination Rules, 2009 came to be challenged before the High Court and the High court upheld the provisions of the Act and Rules, which came to be questioned before this Court in Modern Dental College & Research Centre (supra). The Constitution Bench itself in paragraph 83 of the judgment has noted that the State enactments does not run foul of any of the existing central law. Paragraph 83 of the judgment needs to be quoted, which is to the following effect:-

p. 962 Copy page pinpoint

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

60Copy pinpoint60. The issue, which was raised before the Constitution Bench was whether the subject matter of admissions was covered exclusively by Entry 66 of List I, thereby the States had no legislative competence to deal with the subject of admissions or determination of fee to be charged by professional educational institutions. The said issue has been noticed in paragraph 98 in following words:- “98. The next issue to be considered is whether the subject- matter of admissions was covered exclusively by List I Entry 66, D thereby the States having no legislative competence whatsoever to deal with the subject of admissions or determination of fee to be charged by professional educational institutions.”

61Copy pinpoint61. In paragraph 101, the Constitution Bench repelled the above submission and in the above context the observations were made E “however, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc.”

62Copy pinpoint62. The Constitution Bench in paragraph 101 has used the expression “not include conducting of examination etc.” In the present case, there is no claim on behalf of the UGC that it is the UGC which shall conduct the examination of the graduate and postgraduate students. The examinations are to be conducted by the respective Universities only. The above observations made by Constitution Bench in paragraph 101 as relied by learned senior counsel for petitioner, cannot be treated to be laying down any preposition that University Grants Commission has no competence to lay down any standards with regard to examination. We, thus, are of the considered opinion that the Guidelines dated 06.07.2020 are not beyond the domain of the UGC and they relate to co- ordination and determination of standards in institutions of higher education. H

p. 963 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

Issue No.2 A

63Copy pinpoint63. The issue consists of two parts, i.e., (i) whether the Revised Guidelines dated 06.07.2020 are non-statutory and advisory only and (ii) the Guidelines dated 06.07.2020 are contrary to earlier Guidelines dated 29.04.2020. We may take up the second part first. The Guidelines dated 29.04.2020 were issued with heading “UGC Guidelines on Examinations B and Academic Calendar in view of COVID-19 pandemic and subsequent lockdown”. With regard to examination of 2019-2020, several Universities have conducted examinations full or partial, some of the Universities were yet to commence their examination. At the outbreak of pandemic COVID-19, the Government of India, Ministry of Home Affairs issued various orders and had taken measures to prevent its spread across the country including lockdown where several activities were prohibited due to the situation as developed from the last week of March, 2020. Neither any teaching could be done in the colleges/ Universities nor any examination could be held for the months together. Since the examinations could not be held in the month of March to June, 2020, by which period usually the examinations of all Universities are completed and results are declared, UGC came with Guidelines on Examinations and Academic Calendar for the Universities. The Guidelines begins with following introduction:- “Introduction E The whole world, including India, is passing through unprecedented difficult times due to the outbreak of COVID-19 pandemic. As all universities and colleges are closed due to national lockdown, the teaching – learning process and research activities have been badly disrupted. The schedule of Terminal Semester examinations has also got disturbed. In such scenario, it is joint responsibility of all the stakeholders to manage multiple key issues relating to academic activities in the institutions. While it is crucial to follow measures taken by the Government to contain the spread of COVID-19, it is also important to continue the educational process making effective use of technology and other available options. Future may have many uncertainties but difficult times demand quick appropriate decisions. We must be optimistic that we can reinvent work again and engage the students in effective and constructive ways. The University Grants Commission (UGC) has been engaged with this issue and contemplating measures to H

p. 964 Copy page pinpoint

A face the challenge of safeguarding the interests of the academic fraternity in general and students in particular. Confronted with vital issues of examinations and academic calendar, UGC constituted an Expert Committee to deliberate on these issues and make recommendations to address them.”

64Copy pinpoint64. The University Grants Commission has constituted an Expert Committee and it was on the basis of report submitted by Expert Committee Guidelines dated 29.04.2020 was issued. It is relevant to extract following portion of the guidelines:- “1. Maintaining the sanctity of academic expectations and integrity of examination process, the universities may adopt alternative and simplified modes and methods of examinations to complete the process in shorter period of time in compliance with CBCS requirements as prescribed by UGC from time to time. These may include MCQ/ OMR based examinations, Open Book Examination, Open Choices, assignment/ presentation-based assessments etc.

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

3. The universities may conduct Terminal / Intermediate Semester / Year examinations in offline / online mode, as per their Ordinances/ Rules and Regulations, Scheme of Examinations, F observing the guidelines of “social distancing” and keeping in view the support system available with them and ensuring fair opportunity to all students.

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

5. For intermediate semester/year students, the universities may conduct examinations, after making a comprehensive assessment of their level of preparedness, residential status of the students, status of COVID-19 pandemic spread in different region / state and other factors.

p. 965 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

In case the situation does not appear to be normal in view A of COVID-19, in order to maintain “social distancing”, safety and health of the students, grading of the students could be composite of 50% marks on the basis of the pattern of internal evaluation adopted by the universities and the remaining 50% marks can be awarded on the basis of performance in previous semester only B (if available). The internal evaluation can be continuous evaluation, prelims, mid-semester, internal assignments or whatever name is given for student progression. In the situations where previous semester or previous year marks are not available, particularly in the first year of annual pattern of examinations, 100% evaluation may be done on the basis of internal evaluation. If the student wishes to improve the grades, he/she may appear in special exams for such subjects during next semester. This provision for intermediate semester examinations is only for the current academic session (2019-20) in view of COVID-19 pandemic, while maintaining safety and health of all the stakeholders and sanctity and quality of examinations.”

65Copy pinpoint65. The Guidelines also contains academic calendar suggested for the academic session 2019-2020 and dates for conduct of examinations were also suggested as 01.07.2020 to 31.07.2020. It is true that Guidelines mentioned that Guidelines are advisory in nature and each University may chart out its plan of action taking into consideration the issues pertaining to pandemic COVID-19. A reading of the Guidelines indicate that ample latitude was given to the Universities to conduct terminal/ intermediate/ semester year examinations in offline and online mode. F The Guidelines, however, cannot be read to mean that Guidelines dated 29.04.2020 left it to the wisdom of the Universities to either conduct terminal semester/final year examinations or not to conduct, which is clear from clauses 4 and 5 under the heading “Examinations”. Clause 4 specifically provides that terminal semester /final year examinations for G PG/ UG courses/ programmes may be conducted by universities as suggested in the academic calendar keeping in mind the protocols of “social distancing”. The academic calendar, which is part of the Guidelines suggested the date for start of the examinations as 01.07.2020. When we read clause 5, the difference between clause 4 and 5 is clear. With H

p. 966 Copy page pinpoint

A regard to intermediate semester /year students there is express mention that “In case the situation does not appear to be normal in view of COVID-19, grading of the students could be composite of 50% marks on the basis of the pattern of internal evaluation adopted by the universities and the remaining 50% marks can be awarded on the basis of performance in previous semester.” But this option is not mentioned in B clause 4 of the Guidelines, which referred to terminal semester/final year examinations. The Guidelines dated 29.04.2020 was issued for a purpose and object with latitude to the Universities to chart their own plan/course but the argument cannot be accepted that Universities were not to follow the Guidelines on the pretext that it uses the expression C “advisory”. The Revised Guidelines dated 06.07.2020 were issued looking to the situation that COVID-19 cases are still rising and likely to increase further and as per academic calendar in the Guidelines dated 29.04.2020, the examinations were to complete by 31.07.2020. The UGC requested the Expert Committee to revisit the Guidelines. The Guidelines dated 06.07.2020 in fact grant further time requiring the completion of examination by 30.09.2020. When we look into the substance of the Guidelines dated 29.04.2020 and Revised Guidelines dated 06.07.2020, it is clear that Guidelines dated 06.07.2020 are in continuation to the earlier Guidelines and not contrary to the earlier Guidelines. We have to look into the substance of the Guidelines and find out the intent and object of the Guidelines. The Guidelines were issued with the object that a uniform academic calendar be followed by all the Universities and final terminal semester/final year examinations be held. With regard to intermediate semester/year examination, the earlier UGC Guidelines dated 29.04.2020 have been continued even in the Revised Guidelines dated 06.07.2020. We, thus, do not accept the submission of petitioners that Guidelines dated 06.07.2020 are contrary to the earlier Guidelines.

66Copy pinpoint66. Now, coming to the first part of the issue that the Guidelines are non-statutory and advisory only, it is the case of both the parties that Guidelines have been issued by the UGC in exercise of power under Section 12. Section 12 of the Act provides that it shall be the general duty of the Commission to take all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. The words “all such steps” are of wide import. The steps referred to in Section 12 may include issuance of guidelines, directions, circulars etc. The Guidelines dated 06.07.2020 has

p. 967 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

to be treated to have been issued in exercise of statutory powers vested A in the Commission under Section 12. Guidelines issued in exercise of statutory powers, thus, cannot be said to be non-statutory. There is one more reason to hold the Guidelines have statutory force. The University Grants Commission, in exercise of power under Section 26 sub-section (1) of the Act, 1956 have made the Regulations namely, “the B UGC(Minimum Standards of Instruction for the Grant of the Master’s Degree through Formal Education)Regulations, 2003”, on which both learned counsel for the petitioners as well as learned counsel for the UGC have placed reliance. Regulation 6, which deals with “examination and evaluation” contains following regulation as Regulation 6.1:- C “6.1 The university shall adopt the guidelines issued by the UGC and other statutory bodies concerned from time to time in respect of conduct of examinations.’’

67Copy pinpoint67. The statutory Regulation, 2003 thus, categorically requires Universities to adopt the Guidelines issued by the UGC, hence, it is the D statutory duty of the Universities to adopt the guidelines issued by the UGC. It is the statutory obligation of the Universities to adopt the Guidelines and the Guidelines cannot be ignored by terming it as non- statutory or advisory. Issue No.3 E

68Copy pinpoint68. The revised guidelines dated 06.07.2020 have been challenged claiming that it violates Article 14 of the Constitution. It is submitted that the UGC guidelines discriminate between the students of Final year and First/Second year. The UGC guidelines have been termed as unreasonable and arbitrary. It is further submitted that impugned guidelines failed the test of Article 14 because they apply throughout India and one fixed date i.e. 30th September, 2020, irrespective of the conditions prevailing in the States/Universities, issuing one deadline results in unequals being treated equally.

69Copy pinpoint69. The submission is that the impugned guidelines discriminate between the students of First year and Final year and carves out one class of students from homogeneous class; The impugned guidelines are in continuation to earlier guidelines dated 29.04.2020 and the guidelines dated 29.04.2020 dealt with terminal semester/ final year examination in clause four and for intermediate semester/year students in clause five. H

p. 968 Copy page pinpoint

70Copy pinpoint70. The earlier guidelines provided that the examination may be conducted, however, an option was given with regard to intermediate/ year students for their promotion on the basis of internal assessment and performance in the previous semesters. Holding of examination for the Final year students was made necessary by the impugned guidelines. The Final year/terminal semesters examinations are important because the learning process is a dynamic interaction where the only way to figure out what students know is to seek evidence of their knowledge and to evaluate it. Performance in examination especially Final year/ terminal semester examination are reflection of competence of the students. Terminal semester/Final year examination also provides an opportunity to the students to improve upon their overall score/marks which are very crucial for academic excellence and opportunities of employment. Final year/terminal semester examination of under- Graduate or post-Graduate is an opportunity for student to show his optimum calibre which pave his future career both in academics and employment. We do not find any unreasonableness or arbitrariness in the revised guidelines of University Grants Commission dated 06.07.2020 which require all Universities/ Collages to conduct at least the final year/ terminal semester examination.

71Copy pinpoint71. The differentiation made by revised guidelines to hold Final year/ Terminal semester examination has a rational basis and there is an intelligible differentia between the student of Final year/Terminal semester and other students. We thus reject the challenge on the ground that there is any hostile discrimination between the students of Final year/Terminal semester and other students.

72Copy pinpoint72. The further submission that the guidelines failed the test of F Article 14 because they apply throughout India and being one fixed date i.e. 30.09.2020 irrespective of the conditions prevailing in the individual States/Universities also cannot be accepted. Even the earlier guidelines dated 29.04.2020 provided for an academic calendar which mentioned 01.07.2020 to 15.07.2020 for conduct of Terminal semester/Final year G examination and 16.07.2020 to 31.07.2020 for Intermediate semester/ year examination. When the academic calendar is set, fixed dates are always given for uniformity. The UGC had rightly fixed a date for completion of the Terminal semester/Final year examination throughout the country to maintain uniformity in the academic calendar.

p. 969 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

73Copy pinpoint73. The students who look forward for admission in higher classes A or take employment require final degree for their career prospect and to maintain uniformity in dates by which final examinations are over is with the object of students welfare and for their career and it cannot be said that since uniform date has been fixed by which Terminal semester/ Final year examination are to be completed, Article 14 has been violated. B

74Copy pinpoint74. Both, the earlier guidelines as well as revised guidelines have taken due notice of the prevailing situation of Covid-19 and it cannot be said that the expert body is unaware of Pandemic spread throughout the Country. The criticism of guidelines that they are unreasonable does not inspire any confidence. Following features in the revised guidelines clearly indicate that expert body took measures in the interest of the students and their academic career: - (i) The academic calendar provided for in the earlier guidelines contemplated conduct of examination from 01.07.2020 to 31.07.2020. The revised guidelines noticed - “The number of covid cases are still rising and likely to increase further…”. The revised guidelines has granted further time for completion of examination till end of September, 2020, which was a step to facilitate Universities and Colleges to complete their examination which was a reasonable step in wake of the Pandemic. (ii) The guidelines made the conduct of examination flexible by providing three modes of examination: E

(a) Offline (Pen and Paper) (b) Online (c) Blended (Online + Offline) F (iii) The revised guidelines also made a provision of examination through special chance in case a student of Terminal semester/Final year is unable to appear in the examination due to any reason.

75Copy pinpoint75. The provision for giving special chance to appear in examination is also in the interest of the students to protect those students who due to any reason are unable to appear in the examination. The above measures G taken in the revised guidelines are reasonable and the criticism of the guidelines that they are unreasonable and manifestly arbitrary are without any substance. We thus do not find revised guidelines to be violative of Article 14 of the Constitution of India. H

p. 970 Copy page pinpoint

A ISSUE NO.4

76Copy pinpoint76. The claim of the learned counsel for the petitioner is that compelling attendance of the students by holding physical examination in the present situation of the Pandemic is a violation of the ‘Right to Life’ under Article 21. It is contended that lakhs of students, teaching B and non-teaching staff will be forced to risk their health and lives of their family members in event they are asked to participate in the Final year/ Terminal examination. The revised guidelines have been issued totally disregarding the graveness of the present Pandemic of which the entire country is in its grip.

77Copy pinpoint77. There can be no doubt that it is the duty of the State to take care of the health of its citizens. The various measures taken by the specified authorities under the Disaster Management Act, 2005, are only with the object to contain the Pandemic and protect the health of citizens of the country. The criticism of the revised guidelines is that it ignores the fact that covid cases are still rising in the different part of the country and the guidelines had completely disregarded the health of the students and expose the students, teachers and non-teaching staff to the risk of contacting virus during the course of examination.

78Copy pinpoint78. It is relevant to note that the revised guidelines were issued taking into consideration the fact that the number of covid cases are still rising and likely to increase further which fact has been categorically mentioned in the beginning of the revised guidelines itself. Further, clause 6 of the revised guidelines specifically provides that every University/ Institution has to ensure that it is prepared in all respect to carry out the academic activity following necessary protocols, guidelines, directions, advisories issued by the Central/ State Government from time to time in view of Covid-19. Clause 6 of the guidelines is as follows:- “6. Notwithstanding the above guidelines regarding conduct of examination and commencement of next academic session, every university/institution has to ensure that it is prepared in all respects to carry out the academic activities following necessary protocols/ guidelines/ directions/ advisories issued by the Central/ State Governments and MHRD/UGC from time to time, in view of COVID-19.”

79Copy pinpoint79. The University Grants Commission is conscious of increasing number of covid cases throughout the country and as observed above, H

p. 971 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

the revised guidelines have extended the period for completion of examination from 31.07.2020 to 30.09.2020 which was only due to the reason that due to Pandemic, Universities/ Colleges may not have been able to hold the examination. Further specific provisions in the guidelines that all institutions have to follow necessary protocols, guidelines, directions, advisories issued as measures to contain Covid-19 makes it clear that there is no intent to protect the students, teachers, non-teaching staff from the deadly virus.

80Copy pinpoint80. It is also relevant to note that after issuance of revised guidelines dated 06.07.2020 OM dated 06.07.2020, Ministry of Human Resource Development (MHRD), has issued detailed guidelines for conduct of examination which guidelines were duly vetted by Ministry of Health C and Family Welfare(MoHFW). The guidelines for conduct of examination were circulated by University Grants Commission vide its letter dated 08.07.2020, “Standard Operating Procedure for conduct of examination is relevant” which is quoted as below: - “Standard Operating Procedure for conduct of D Examination

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

2. In case there is a restriction on movements in certain areas, admit/identity cards issued to the students should be treated as a pass for the movement of the students. State F Governments should issue instructions to all local authorities to issue movement passes to invigilators and all personnel engaged in the conduct of examination.

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

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

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

p. 972 Copy page pinpoint

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

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

8. All the washrooms should be cleaned and disinfected. B

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

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

C 11. All the trash bins should be cleaned.

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

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

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

15. Downloading of ‘Arogya Setu’ App may be advised for every staff and student of the University and College. G

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

p. 973 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

17. Avoid crowding at entry and exit points. A

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

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

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

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

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

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

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

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

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

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

28. Dustbins must be cleaned and covered properly. G

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

30. At the end of the day-

p. 974 Copy page pinpoint

A a. Used gloves and masks should be disposed only in a pedal push covered bin at the Examination Centre and outside the examination room/hall. b. Safely dispose off all used masks and gloves discarded at the examination centres or outside the examination centre in trash bin bags at suitable place and as per standard guidelines issued by health authority.”

81Copy pinpoint81. The Standard operating procedure for conduct of examination as extracted above make it abundantly clear that UGC, MHRD, and Ministry of Health and Family Welfare are fully concerned with the health of all stakeholders i.e. the students as well as exam functionaries.

82Copy pinpoint82. In view of the above, we are not persuaded to accept the submissions of the petitioner that the revised guidelines are violative of Article 21 of the Constitution. ISSUE NO.5

83Copy pinpoint83. The revised guidelines dated 06.07.2020 have been challenged on the ground that it has been issued in the breach of Section 12(1) of the UGC Act, 1956. The submission is that Section 12(1) mandates that the Commission in consultation with the Universities and other bodies concerned shall take all such steps as it may think fit. It is submitted that E before issuance of the revised guidelines dated 06.07.2020, the UGC was required to consult all the Universities and other bodies concerned. The submission is that the expression ‘other bodies concerned’ used in Section shall include State Disaster Management Authority which has been constituted in each state and before issuance of guidelines dated 06.07.2020, it was obligatory for the UGC to consult the State Disaster F Management Authority. Further submission is that the expression ‘other bodies’ may also include health experts and UGC was required to consult health experts before issuing the revised guidelines. The UGC having failed to consult the Universities or other bodies, the guidelines dated 06.07.2020 are in breach of Section 12 and are liable to set aside on this ground alone.

84Copy pinpoint84. For appreciating the above challenge raised by the petitioner, we need to look into the statutory scheme as delineated by Section 12 of UGC Act, 1956. Section 12 is part of Chapter III of UGC Act, 1956, which deals with “Powers and functions of the Commission”. Section 12 bears the heading “Functions of the Commission”. Section 12 as relevant is as follows:-

p. 975 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

“POWERS AND FUNCTIONS OF THE COMMISSION A Functions of the12. It shall be the general duty of the Commission to take, in Commission consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may B

(a) inquire into the financial needs of Universities; (b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such C Universities or for any other general or specified purpose; (c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem 1 [necessary or appropriate for the development of such Universities or for the maintenance, or development, or both, of any specified activities of such Universities] or for any other general or specified purpose: D Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purposes which it may serve, [(cc) allocate and disburse out of the Fund of the Commission, E such grants to institution deemed to be universities in pursuance of a declaration made by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely: - (i) for maintenance in special cases, F (ii) for development. (iii) for any other general or specified purpose;] [(ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services G and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and, disbursing out of the Fund of the Commission such grants as the Commission may deem necessary.] H

p. 976 Copy page pinpoint

A (d) recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation; (e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be; (f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University; (g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be; D (h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University; (i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning; (j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.”

85Copy pinpoint85. Section 12 begins with the words “it shall be the general duty of the commission to take”,...“in consultation with Universities or other bodies concerned.” What is the ambit and scope of expression ‘Universities or other bodies concerned’ has fallen for consideration in the present case. The use of expression ‘Universities or other bodies concerned’ is for purpose and object which is clear from subsequent enumerations of functions of the commission in the Section itself. For example, we may take functions of the commission as mentioned in sub- H

p. 977 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

clause (d) which provides that the Commission may recommend to the universities any measures necessary for the improvement of the university education and advise the universities upon the action to be taken for the purpose of implementation of such recommendation. When we look into this sub-clause (d), it is clear that the function enumerated in sub-clause is only with regard to a particular university and for discharge of function by the commission with regard to sub-clause (d), it has to consult only the university concerned.

86Copy pinpoint86. The use of the word ‘Universities or other bodies concerned’ in the opening part of the Section has been with a purpose of referring the universities or other bodies concerned for whom the function has to be performed by. The enumerations given from clause (a) to (j) indicate that apart from universities the function also include advice to the Central Government or any State Government on allocation of any grant to the Universities or advise Central Government or any State Government or any Universities on any question which may be referred to the commission by the Central Government or the State Government. Thus, the expression D ‘other bodies’ used in the opening part of the Section is in reference to other bodies apart from universities enumerated in Section 12. The expression ‘Universities or other bodies concerned’ used in the opening part of the Section cannot be stretched to the meaning which is now sought to be given by the learned counsel for the petitioner. E

87Copy pinpoint87. The submission that ‘other bodies’ as used in Section 12 should include State Disaster Management Authority or health experts is misconceived. Section 12 never contemplated any such “bodies”. Furthermore, the State Disaster Management Authority came into existence only after enactment of Disaster Management Act, 2005, no such concept was there when the UGC Act, 1956 was enacted. The F expression ‘other bodies’ cannot be expanded as contended by the learned counsel for the petitioner. The use of the word ‘concerned’ after ‘Universities or other bodies’ has specific purpose and meaning. The consultation with the Universities or other bodies concerned was in reference to a particular function which was enumerated in clause (a) G to (j) and it has specific reference and “Universities” or other bodies” were referred to in the above context. Section 12 cannot be interpreted in a manner that for taking any measure with regard to coordination of university education and for determination and maintenance of standards of teaching examination in the Universities, the UGC should consult each H

p. 978 Copy page pinpoint

A and every University of each and every State and only then, such measures can be taken. Reading the provision in above manner shall make the functioning of UGC unworkable. There are more than nine hundred Universities in the country and to require UGC to consult more than nine hundred universities for taking any measure will make the functioning impossible and impractical. B

88Copy pinpoint88. Section 12 cannot be interpreted in a manner that for taking any steps by the UGC, there is a mandatory requirement of consultation of all the States/Universities failing which no measures can be taken by the University Grants Commission. Clause (j) of Section 12 is couched in a very vide manner which empower the commission to perform such C other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above function. Any function which may be deemed necessary by the Commission can be performed. For performance of its function by the D Commission, the Commission of its own is fully competent to take decisions, issue any directions, guidelines, etc. The Commission may also take assistance of any Committee of experts in discharge of its functions for which there is no prohibition in the statutory scheme. In the common counter affidavit filed by the UGC with regard to the guidelines dated 29.04.2020, the Commission has in paragraph 8 of the common counter affidavit has stated that the guidelines which contained policy decision taken by UGC were made following the report by the Committee under the Chairmanship of Prof. R.C.Kuhad. Following statements have been made in the paragraph 8: - “8.... It is pertinent to note that these Guidelines, which contain policy decisions taken by the UGC, were made following a report by a committee under the Chairmanship of Prof. R.C.Kuhad, Vice- Chancellor, Central University of Haryana. The said committee consisted of various experts in the field that included Vice- Chancellors of various universities, the director of the Inter G University Accelerator Centre, New Delhi, and senior officers of the UGC. Therefore, the Guidelines were published “in consultation with the Universities or other bodies concerned”, as mandated by section 12 of the UGC Act...”

89Copy pinpoint89. The revised guidelines dated 06.07.2020 was issued after the H report was received from the Committee headed by Prof. R.C. Kuhad

p. 979 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

as has been specifically pleaded in paragraph 10 of the common counter A affidavit in which following statement has been made:- “10. That, however, in June 2020, considering the evolving situation of the Covid-19 pandemic, the UGC requested the expert committee headed by Prof. R.C. Kuhad to revisit the ‘UGC Guidelines on Examinations and Academic Calendar for the B Universities in View of COVID-19 Pandemic and Subsequent Lockdown’. Accordingly, the expert committee (which also included Vice-Chancellors of technical Universities and a representative of industry) did so, and submitted a report recommending that terminal semester/final year examinations would be conducted by universities/ institutions by the end of C September, 2020 in offline(Pen & Paper)/ online/ blended (online + offline) mode. This report of the expert committee was deliberated and approved by the UGC in its emergent meeting held on 06.07.2020...”

90Copy pinpoint90. The statutory scheme as delineated by Section 12 makes it clear that for the purposes of performing its functions under the Act as enumerated in clause (a) to (j), it is not mandatory duty of the Commission to consult with the Universities or other bodies concerned in all cases e.g. while allocating and disbursing out of the fund of the Commission, grants to the Universities as enumerated in sub-clause (b) and (c). It is not necessary to consult the university to whom the grant is to be allocated and disbursed. The expression “in consultation with the Universities or other bodies concerned” has to be read to mean where consultation with Universities or other bodies concerned is necessary without which the Commission is unable to perform its functions. F

91Copy pinpoint91. We may further elaborate the point by referring to certain other functions as enumerated in Section 12. Section 12 sub-clause (h) provides: - “(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the G same available to any University;”

92Copy pinpoint92. Whether for collecting information relating to University education in India, UGC has to consult all 900 or more Universities and whether without consultation with the Universities, it cannot perform its functions under Section 12(h), the answer would be obviously that it is H

p. 980 Copy page pinpoint

A not necessary for UGC to consult all the universities while collecting information relating to University Education in India. The expression “Universities or other bodies concerned” has not be read in a rigid manner rather it is flexible as per requirement of the Commission. The residuary clause i.e. Section 12(j) cloth the Commission to perform such other functions as may be deemed necessary by the Commission. The B guidelines dated 29.04.2020 and 06.07.2020 have been issued after consultation of an expert Committee headed by Prof. Kuhad. The guidelines have been issued after a report of an expert committee consisting of academicians and experts. It cannot be said that the Commission had no jurisdiction to issue guidelines without consulting all C the Universities in the Country and all the States or Union Territories.

93Copy pinpoint93. The UGC is empowered to perform such other functions as may be deemed necessary by the Commission. If the Commission felt it necessary to issue guidelines after obtaining a report from the expert committee, no exception can be taken to the procedure adopted by the D Commission. The guidelines dated 29.04.2020 as well as revised guidelines dated 06.07.2020 are general in nature and not confined to any particular university or any particular state. Hence, it cannot be said that UGC is obliged to consult all Universities or States before issuance of the guidelines.

94Copy pinpoint94. We thus, are satisfied that guidelines dated 06.07.2020 cannot be said to be violative of Section 12 of UGC Act, 1956. Issue No.6

95Copy pinpoint95. The submission which has been pressed before us by the learned counsel for the petitioners challenging the revised guidelines dated F 06.07.2020 is that the said guidelines insofar as it directs for holding of the final year/terminal semester examination by 30.09.2020 does not prohibit a State or State Disaster Management Authority in taking appropriate decision in exercise of power under Disaster Management Act, 2005 not to hold examination looking to the situation in a particular G State. In this context, reference has been made to the decision taken by the State Disaster Management Authority of Maharashtra dated 18.06.2020 and the Government Resolution dated 19.06.2020 by the State of Maharashtra as well as the proceedings dated 13.07.2020 of the State Disaster Management Authority of the State of Maharashtra. The submission is that exercise of power under Disaster Management Act, H

p. 981 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

2005 shall override the UGC’s guidelines directing holding of the examination by 30.09.2020 by each University/Colleges. For considering the above submission we need to look into the statutory scheme of the Disaster Management Act, 2005 and various orders issued thereunder. The Disaster Management Act, 2005 has been enacted to provide for the effective management of disasters and for matters connected therewith or incidental thereto. Section 3 provides for establishment of National Disaster Management Authority with Prime Minister of India as Chairperson. Section 6 provides for powers and functions of National Authority. Section 8 provides for constitution of National Executive Committee. National Plan is to be drawn as per Section 11. Section 14 provides for establishment of State Disaster Management Authority. C Section 14 of the Act is as follows: “Section 14. Establishment of State Disaster Management Authority.—(1) Every State Government shall, as soon as may be after the issue of the notification under sub-section (1) of section 3, by notification in the Official Gazette, establish a State Disaster D Management Authority for the State with such name as may be specified in the notification of the State Government. (2) A State Authority shall consist of the Chairperson and such number of other members, not exceeding nine, as may be prescribed by the State Government and, unless the rules otherwise E provide, the State Authority shall consist of the following members, namely:— (a) the Chief Minister of the State, who shall be Chairperson, ex officio; (b) other members, not exceeding eight, to be nominated by the F Chairperson of the State Authority; (c) the Chairperson of the State Executive Committee, ex officio. (3) The Chairperson of the State Authority may designate one of the members nominated under clause (b) of sub-section (2) to be G the Vice-Chairperson of the State Authority. (4) The Chairperson of the State Executive Committee shall be the Chief Executive Officer of the State Authority, ex officio: Provided that in the case of a Union territory having Legislative Assembly, except the Union territory of Delhi, the Chief H

p. 982 Copy page pinpoint

A Minister shall be the Chairperson of the Authority established under this section and in case of other Union territories, the Lieutenant Governor or the Administrator shall be the Chairperson of that Authority: Provided further that the Lieutenant Governor of the Union territory of Delhi shall be the Chairperson and the Chief Minister thereof shall be the Vice-Chairperson of the State B Authority. (5) The term of office and conditions of service of members of the State Authority shall be such as may be prescribed.”

96Copy pinpoint96. Section 18 deals with powers and functions of State Authority. C Section 20 provides for constitution of State Executive Committee and Section 22 enumerates functions of the State Executive Committee. Section 38 empowers the State Government to take measures.

97Copy pinpoint97. After notifying COVID-19 as pandemic the National Disaster Management Authority issued order dated 24.03.2020 directing the D Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities to take effective measures so as to prevent the spread of COVID-19 in the country. Guidelines and the measures to be taken by the Ministries, State/Union Territory were issued by the Ministry of Home Affairs. For the purposes of this case we may notice the order dated 30.05.2020 issued by the E Government of India, Ministry of Home Affairs in exercise of powers conferred under Section 6(2)i) of the Act, 2005. The guidelines for phased reopening (Unlock I) was issued on 30.05.2020. Paragraphs 1 and 5 of the guidelines which are relevant are as follows: “1. Phased re-opening of areas outside the Containment F Zones In areas outside Containment Zones, all activities will be permitted, except the following which will be allowed, with the stipulation of following Standard Operating Procedures (SOPs) to be prescribed by the Ministry of Health and Family Welfare G (MoHFW), in a phased manner. Phase I ........

p. 983 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

Phase II A Schools, colleges, educational/training/ coaching institutions etc., will be opened after consultations with States and UTs. State Governments/UT administrations may hold consultations at the institution level with parents and other stakeholders. Based on the feedback, a decision on the re-opening of these institutions B will be taken in the month of July, 2020. MoHFW will prepare SOP in this regard, in consultation with the Central Ministries/ Departments concerned and other stakeholders, for ensuring social distancing and to contain the spread of COVID-19. C Phase III ........

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

98Copy pinpoint98. The guidelines dated 30.05.2020 were to remain in force till 30.06.2020 during which period some of the States have taken a decision not to hold the examination as directed by the UGC. For the purposes of this case it shall be sufficient to notice the decision taken by the E Government of Maharashtra as well as the State Disaster Management Authority of State of Maharashtra. State Disaster Management Authority of Maharashtra in its meeting dated 18.06.2020 took a decision not to conduct the final year/terminal semester examination. The Government Resolution dated 19.06.2020 was issued by the Government of Maharashtra where the Government decided that taking into consideration the situation of COVID-19 in the State of Maharashtra final year examination of professional courses cannot be arranged. With regard to non-professional (traditional) courses Government resolved to declare result by way of adopting suitable formula after obtaining in writing from students that they intend to get the Degree without appearing in examination. On 18.06.2020 when the State Disaster Authority took the decision and the Government of Maharashtra issued Government Resolution the guidelines issued by the Ministry of Home Affairs dated 30.05.2020 did not expressly permit conduct of examination in Schools/ Colleges. In paragraph 5 of the guidelines dated 30.05.2020 issued by the Ministry of Home Affairs, States/Uts, based on their assessment of H

p. 984 Copy page pinpoint

A the situation, were empowered to prohibit certain activities outside the Containment Zones, or impose such restrictions as deemed necessary. When the State Disaster Management Authority and the State Government (Maharashtra) took a decision not to conduct examination, the said decision was well within the guidelines issued by the Ministry of Home Affairs. Further Disaster Management Authority of the State is empowered under Section 38 to take measures for the purpose of prevention of disaster and mitigation. The decision taken by the State Disaster Management Authority on 18.06.2020 as well as the State Government’s Resolution dated 19.06.2020 insofar they decided not to hold final year/terminal semester examination by 30.09.2020 was well within the jurisdiction of the said Authority. We have noticed that guidelines of UGC dated 06.07.2020 directed all Universities/Colleges to complete their examinations by 30.09.2020. The question is as to whether the State Disaster Management Authority could have taken a decision contrary to the directive of the University Grants Commission to complete the examination by 30.09.3030. Reliance has been placed on Section 72 D of the Disaster Management Act, 2005 which provision gives overriding effect to the provisions of Act, 2005. Section 72 of the Act, 2005 is quoted below: “Section 72. Act to have overriding effect.—The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

99Copy pinpoint99. The Disaster Management Act, 2005 empowers the State Disaster Management Authority as well as the State Government to take decision for prevention and mitigation of a disaster and the action taken by the authorities under the Disaster Management Act have been given overriding effect to achieve the purpose and object of the Act. In case of a disaster the priority of all authorities under the Disaster Management Act is to immediately combat the disaster and contain it to save human life. Saving of life of human being is given paramount importance and the Act, 2005 gives primacy, priority to the actions and measures taken under the Act over inconsistency in any other law for the time being in force. Section 72 begins with non obstante clause. This Court in State (NCT of Delhi) vs. Sanjay, 2014(9) SCC 772 in paragraph 63 laid down following: H

p. 985 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

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

100Copy pinpoint100. The Kerala High Court had occasion to consider Section 72 of the Disaster Management Act in reference to another Central Act that is Land Acquisition Act. The Division Bench of the Kerala High Court (of which one of us Justice Ashok Bhushan was also a member) laid down following in paragraph 69: C

69. The Disaster Management Act, 2005 is enacted with a definite object. Various powers have been given to the different authorities, including the DDMA to achieve the objects of the Act. Various statutory plans are to be prepared for Disaster Management. In event it is to be accepted that with regard to taking any action with regard to a premises which is in occupation/ D possession/ownership of a private person, the authorities have first to draw proceedings under the Land Acquisition Act and then issue any order under the 2005 Act is to defeat the entire purpose and object of the 2005 Act. The legislature being well aware of the legal consequences have already engrafted Section E 72 of the Act which gives overriding effect to the provisions of the 2005 Act, notwithstanding anything consistent therewith contained in any other law. Section 72 of the Act is as follows: “72. Act to have overriding effect.-The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.””

101Copy pinpoint101. At this juncture, we may also notice the OM dated 06.07.2020 issued by the Ministry of Human Resource Development as well as the decision dated 06.07.2020 of Ministry of Home Affairs. Learned Solicitor General appearing for the University Grants Commission has submitted that in case of National Disaster the decision taken by the National Disaster Authority as well as the decision of the National Executive Committee hold the field and no contrary decision can be taken by a H

p. 986 Copy page pinpoint

A State Disaster Management Authority or State Government. It is submitted that on 06.07.2020 the Ministry of Home Affairs in a letter to Union Higher Education Secretary, permitted conduct of examination by Universities and Institutions. The decision of the Ministry of Home Affairs is placed on record which is to the following effect: B “Press Information Bureau Government of India ***** Ministry of Home Affairs permits conduct of examinations C by Universities and Institutions

New Delhi, July, 6 2020 Ministry of Home Affairs, in a letter to Union Higher Education Secretary, today permitted conduct of examinations by Universities D and Institutions. The final Term Examinations are to be compulsorily conducted as per the UGC Guidelines on Examinations and Academic Calendar for the Universities; and as per the Standard Operating Procedure (SOP) approved by the Union Ministry of Health & Family Welfare. E

102Copy pinpoint102. The Ministry of Human Resource Development issued an OM dated 06.07.2020 which is to the following effect: F “Government of India Ministry of Human Resource Development Department of Higher Eduction

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

p. 987 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

OFFICE MEMORANDUM A

Subject: Instructions for conduct of examination regarding.

A large number of examinations of the Universities, IIT- B JEE(Mains & Advance), NEET etc are scheduled to be held in the coming months. In order to ensure safety of the examinees, as also their academic interest, the following action may be taken.

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

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

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

4. MHRD has formulated detailed SOP for conduct of examinations with precautions to be taken in view of COVID-19 E situation. This has been vetted by the Ministry of Health and Family Welfare. A copy of the same is enclosed to ensure safety to all.

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

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

103Copy pinpoint103. A perusal of the OM dated 06.07.2020 indicates that the Ministry of Home Affairs has agreed to the request of the Ministry of Human Resource Development and granted exemption for the opening H

p. 988 Copy page pinpoint

A of educational institutions for the purpose of holding examinations/ evaluation work for Final Term Examinations of the Universities/ Institutions. The said OM as well as letter of the Ministry of Home Affairs cannot be read to mean that it fettered the jurisdiction of the State Authority to take a decision considering the situation in a State with regard to conduct of examinations. The cumulative effect of OM B dated 06.07.2020 and letter dated 06.07.2020 shall be that Government of India granted exemption for holding the examinations which shall be treated as exception to the guidelines dated 29.06.2020 issued by the Ministry of Home Affairs where Schools, Colleges, educational and coaching institutions were to remain closed till 31.07.2020. The said C OM and letter dated 06.07.2020 permitting holding the examinations shall not fetter the power of the State Disaster Management Authority to take appropriate measures to contain the Disaster in the State. It is relevant to notice that State Disaster Management Authority of the State of Maharashtra held meeting on 13.07.2020 and took the following decision: D “......... After detailed deliberations in the meeting, the following decision was taken:-

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

F 2. The University Grants Commission should be re-requested as it is not possible to conduct the examination as per the guidelines.”

104Copy pinpoint104. With regard to conduct of examinations, the State authorities are competent to assess the situation in a particular State regarding G possibility of holding of examinations. No State shall permit health of its subject to be compromised that is why overriding power has been given to the State Disaster Management Authority and the State Government with regard to any inconsistency with any other law for the time being in force. We have noticed above that there are no orders or directions in the guidelines of the National Disaster Management Authority or National H

p. 989 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

Executive Committee fettering the powers of the State Disaster A Management Authority and a State Government to take a decision as to whether examinations by physical mode be permitted in particular State looking to the situation in the State. Coming to the guidelines dated 06.07.2020 of the UGC insofar as it directs completion of final examinations by 30.09.2020 which direction is overridden by the decision B of the State Disaster Management Authority and State Government where it resolved not to hold the examinations. We, thus, conclude that direction of the University Grants Commission in its revised guidelines dated 06.07.2020 insofar it directs the Universities and colleges to complete the final year/terminal examinations by 30.09.2020 shall be overridden by any contrary decision taken by a State Disaster C Management Authority or the State Government exercising power under the Disaster Management Act, 2005. Learned counsel appearing for the UGC has, in his submission, submitted that UCC shall be ready to consider any request received from any State to allow the Universities to re- schedule the date of final examinations and in the event any request is D made to the UGC the deadline for completion of the examination can be extended by the UGC and the date of final examinations can be rescheduled. Issue No.7

105Copy pinpoint105. As noted above, the State Disaster Management Authority E (State of Maharashtra) in its meeting dated 18.06.2020 as well as the State of Maharashtra in its Resolution dated 19.06.2020 have resolved to promote the students without taking the final examinations. It is useful to refer to the Government Resolution dated 19.06.2020, which is to the following effect: F “Government Resolution:

1. In all non-agricultural universities, deemed universities, self- financed universities and their affiliated colleges for the academic year 2019-20 for organising examinations of final session/final year of graduation/ post-graduation classes the G Universities are required to take action as per following point (1) and (2) in A: (A) Non-Professional (Traditional) Courses:

1. If the students of final session/year have gone through in all earlier sessions intend to get degree certificates without H

p. 990 Copy page pinpoint

A appearing their examination, by way of obtaining in writing from them by way of adopting suitable formula the Universities should declare result.

2. If the students of final session/year have gone through in all earlier sessions intend to appear the examination, by way of obtaining in writing from them opportunity of appearing the examination is to be given to them. After taking into consideration the emergence of Covid-19 epidemic at local level and local situation and after discussing with the concerned District Collector & President of Disaster Eradication Authority the Universities should take suitable decision and accordingly they may declare the time table.

3. In case of the students of final year if there is any backlog, in respect of examinations of their backlog a meeting is to be arranged at Government level with Chancellor and concerned Officers of the University and after discussing the matter in this meeting suitable decision would be taken. (B) Professional Courses (Engineering, Pharmacy, Hotel Management, Management Science, Architecture, Planning, Computer Science, Law, Physical Education, Teaching Science etc): E Taking into consideration the situation of Covid-19 in the State the examinations of final session/final year of Professional Courses cannot be arranged. For those students like non-professional courses the decision has been taken in the meeting of State Disaster Management Authority that action would be taken as per following point (1), (2) and (3) in above point A. The concerned apex institution of concerned professional courses can make a request for getting approval to the same. In this regard separate communication would be done.

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

106Copy pinpoint106. The guidelines dated 06.07.2020 categorically directed all Universities/Colleges to hold the examination of terminal semester/final year, option for not holding the examination was given in the revised

p. 991 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

guidelines as well as the earlier guidelines only with regard to intermediate/ A year examination. Before us submissions have been addressed by the learned counsel appearing for the petitioners contending that students can be promoted on the basis of previous year assessment and internal assessment which in no manner shall be lowering down the standard of education and the decision taken by the State Government and the State B Disaster Management Authority to grant such promotion is perfectly in accordance with law. Referring to Regulations, 2003 it has been submitted that students can be promoted on the basis of cumulative grade point average. It is submitted that students have completed five semesters and no special importance can be attached to the last semester, hence the Maharashtra Government’s decision to promote on the basis of previous assessment and internal assessment was in accordance with law.

107Copy pinpoint107. We have already held, while considering Issue No.1, that University Grants Commission Act has been enacted in reference to Entry 66 of List I. The States although have legislative competence to legislate on education including Universities but the State Legislation is subject to Entry 66 List I. The revised guidelines issued by UGC are statutory and referable to University Grants Commission Act, 1956 and shall have precedence as compared to any inconsistent decision taken by the State. We also need to consider as to whether in exercise of power under the Disaster Management Act, 2005, the State or State E Disaster Management Authority could have taken any decision with regard to promote the students without undergoing final year/terminal semester examination. The purpose and object of the Disaster Management Act, 2005 is management of disasters and for matters connected therewith. The Disaster Management is a continuous and integrated process of planning,organising, coordinating and implementing measures. The Disaster Management has been defined in Section 2(e) to the following effect: “Section 2(e)- “disaster management” means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for— (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; H

p. 992 Copy page pinpoint

A (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; B (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction;”

108Copy pinpoint108. The word mitigation has also been defined in Section 2(i) as follows: C “Section 2(i)- “mitigation” means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation;”

109Copy pinpoint109. The exercise of powers by the State Disaster Management D Authority or by the State Government which shall have overriding effect under Section 72 are those exercise of jurisdiction which are within the four corners of the Disaster Management Act, 2005. When the State Disaster Management Authority and State Government take a decision that for mitigation or prevention of disaster it is not possible to hold physical examination in the State, the said decision was within the four corners of E Disaster Management Act, 2005. However, the decision of the Disaster Management Authority or the State Government that students should be promoted without appearing in the final year/terminal semester examination, is not within the domain of the Disaster Management Act,

2005. The decision to promote students and grant Degree by a State if contrary to any Central enactment or guidelines issued thereunder the Central enactment and the guidelines thereunder shall have precedence by virtue of the same being referable to Entry 66 List I. We, thus, conclude that the State Disaster Management Authority and the State Government has no jurisdiction to take a decision that the students of final year/terminal examination should be promoted on the basis of earlier years assessment and internal assessment whereas the UGC guidelines dated 06.07.2020 directed specifically to conduct final year/terminal semester examination. The UGC guidelines dated 06.07.2020 in the above respect shall override the decision of the State Government and the State Disaster Management Authority regarding promoting the students, does not fall within the jurisdiction of the Disaster Management Act,

p. 993 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

2005 and shall have no protection of Section 72 of the Disaster A Management Act, 2005. We, thus, conclude that the State or the State Disaster Management Authority have no jurisdiction under Disaster Management Act, 2005 to take a decision for promoting the students on the basis of previous performance or internal assessment which decision being contrary to revised guidelines of the University Grants Commission B cannot be upheld and has to give way to the guidelines of UGC which is the Authority to issue guidelines for determination and maintenance of standards of education and teaching of the Universities.

110Copy pinpoint110. From the aforesaid discussion, we arrive at the following conclusions: C Conclusions: (1) The Revised Guidelines dated 06.07.2020 issued by the UGC are not beyond the domain of the UGC and they relate to coordination and determination of standards in institutions of higher education. D (2) The Guidelines dated 06.07.2020 are in continuation to the earlier Guidelines dated 29.04.2020 and are not contrary to the earlier Guidelines. We have to look into the substance of the Guidelines to find out the intention and object of the Guidelines. The Guidelines were issued with the object that a uniform E academic calendar be followed by all the Universities and final / terminal examinations be held. (3) The Guidelines dated 06.07.2020 has to be treated to have been issued in exercise of the statutory powers vested in the Commission under Section 12. As per the Statutory Regulations, F 2003, it is the statutory duty of the Universities to adopt the Guidelines issued by the UGC. The Guidelines dated 06.07.2020 cannot be ignored by terming it as non-statutory or advisory. (4) The differentiation made in the Revised Guidelines to hold final or terminal semester examination and to give option for earlier G years/intermediate semester for not holding the examination has a rational basis. The differentiation has nexus with the object to be achieved. We, thus, reject the challenge to the revised Guidelines on the ground that there is any discrimination between the students of final year/terminal semester and those of intermediate and first year. H

p. 994 Copy page pinpoint

A (5) The revised Guidelines also cannot be termed to violate Article 14 of the Constitution on the ground that one date, i.e., 30.09.2020 has been fixed irrespective of the conditions prevailing in individual States. The date for completion of examination was fixed throughout the country to maintain uniformity in the academic calendar. B (6) The Revised Guidelines dated 06.07.2020 as well as Standard Operating Procedures for conduct of examinations circulated vide letter dated 08.07.2020 of UGC as well as O.M. dated 06.07.2020 issued by MHRD clearly shows deep concern with the health of all stakeholders, i.e., students as well as the exam functionaries. C Challenge to the Guidelines on the ground of it being violative of Article 21 is repelled. (7) The expression “other bodies” used in opening part of the Section 12 of the UGC Act, 1956 is in reference to other bodies apart from Universities as enumerated under Section 12. The D submission that other bodies as occurring in Section 12 should include State Disaster Management Authority or health experts is misconceived. Section 12 never contemplated any such expression. The revised guidelines dated 06.07.2020 are not in breach of Section 12 of 1956 Act. E (8) The Disaster Management Act, 2005 empowers the State Disaster Management Authority as well as the State Government to take measures for prevention and mitigation of a disaster and the action taken by the authorities under the Disaster Management Act have been given overriding effect to achieve the purpose and F object of the Act, 2005. Saving of human life has been given paramount importance under the Act, 2005. Primacy have been given to the actions and measures taken under the Act, 2005 over anything inconsistent in any other law for the time being in force. (9) The direction of the University Grants Commission in Revised G Guidelines dated 06.07.2020 insofar as it directs the Universities and Colleges to complete the final year/terminal year examination by 30.09.2020 shall be overridden by any contrary decision taken by the State Disaster Management Authority or the State Government exercising power under the Disaster Management Act, 2005. H

p. 995 Copy page pinpoint

COMMISSION (UGC) AND ORS. [ASHOK BHUSHAN, J.]

(10) The State Governments or State Disaster Management A Authority in exercise of power under Disaster Management Act, 2005 has no jurisdiction to take a decision that the students of final year/terminal students should be promoted on the basis of earlier year assessment and internal assessment, which decision being contrary to UGC Guidelines dated 06.07.2020 has to give B way to the UGC Guidelines. The UGC Guidelines dated 06.07.2020 specifically directed to conduct the final year/ terminal semester examination which shall override such contrary decision of the State Government or SDMA.

111Copy pinpoint111. In view of our foregoing discussion and conclusion, this batch of cases is disposed of in the following manner: C

(1) The prayer to quash the revised guidelines dated 06.07.2020 issued by the University Grants Commission and OM dated 06.07.2020 issued by the Ministry of Human Resource Development and letter dated 06.07.2020 issued by the Ministry of Home Affairs is refused. D

(2) The decision taken by the State Disaster Management Authority/State not to hold final year/terminal semester examination by 30.09.2020 in exercise of power under Disaster Management Act, 2005 shall prevail over deadline fixed by the University Grants Commission i.e. 30.09.2020 in respect to the concerned State. (3) The decision of the State/State Disaster Management Authority to promote the students in the final year/terminal semester on the basis of previous performance and internal assessment being beyond the jurisdiction of Disaster Management Act, 2005 has to give way to the guidelines of UGC dated 06.07.2020 directing to hold examination of final year/terminal semester. The State and University cannot promote the students in the final year/terminal semester without holding final year/terminal examination. (4) If any State/Union Territory in exercise of jurisdiction under G Disaster Management Act, 2005 has taken a decision that it is not possible to conduct the final year/terminal semester examination by 30.09.2020, we grant liberty to such State/Union Territory to make an application to the University Grants Commission for extending deadline of 30.09.2020 for that State/Union Territory H

p. 996 Copy page pinpoint

A which shall be considered by UGC and rescheduled date be communicated to such State/Union Territory at the earliest.

112Copy pinpoint112. All writ petitions are disposed of accordingly. The Special Leave Petition No.10042 of 2020 is dismissed.

B Kalpana K. Tripathy Matters disposed of.