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TMI Blog1997 (9) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... r the examination by paying necessary fees. For the purpose of appearing in the examination they were, however, required to register their names and once registered they could appear in the examination within a period of five years. Universities issued prospectus every year calling upon the candidates to register their names for appearing in the examinations which normally held once in a year separately for under-graduate and post-graduate examinations. The eligibility criteria for appearing in the external examinations was pass in the pre-university examination or equivalent examination. Graduate level examinations were conducted in Part-I and Part-II. A candidate could appear in any such examination after a gap of two years between Intermediate and Part-I examination and after a gap of three years in Part-II examination. Candidates could appear for three years degree course in Part I and Part II simultaneously. In respect of post graduate degree examination two year's gap from the graduation was required. Universities, however, which conducted such examinations for more than two decades did not publish any programme for the year 1996 although one of the Universities, Kakatiya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stem only in the new format and new pattern. According to the counter-affidavit of the UGC, the matter regarding obtaining the degree in one sitting was under the consideration of the Commission since July 1994 and it was referred to a Committee for report with reference to the Academic soundness of private appearance in the examinations. The Committee headed by Mr. RG. Takwale, Vice Chancellor, Indira Gandhi National Open University made recommendations laying down the minimum standard of instructions for the grant of first degree through non-formal/distant education for the faculties of Arts, Humanity, Fine Arts, Music, Social Sciences, Commerce and Science regulations and stated that science regulations which were introduced in the year 1985 were made mandatory and they should be given effect to. The Committee also stated that awarding first degree within one sitting by private appearance was not in consonance with the regulations as there was no teaching-learning process in the Universities in non-formal distant education. On 20-2-1996 the Commission decided as under : "1. According to the UGC regulations of minimum standards, both the formal and non-formal degree course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eving excellence. 4. Since we are in agreement with the view expressed by the learned single Judge in most part of the judgment we do not propose to traverse all the issues that were raised before the learned single Judge. It is no longer in doubt that right to education is a fundamental right guaranteed under Article 21 of the Constitution of India, unless the economic capacity and development of the state prohibits enforcement of the same. Imparting education is a public duty imposed by the Constitution and hence it can be enforced by a writ of mandamus if the authorities fail to discharge the public duty or act in an illegal or perfunctory manner in the sense that there is in fact no performance. Regulations framed by the UGC are in the nature of guidelines and are not binding on the Universities. It is not necessary for the Universities to meticulously obey the directions issued by the UGC. Learned single Judge has rightly held that there is no provision either in the Andhra Pradesh Universities Act, 1981 or in the UGC Act under which the regulation framed under Clause (f) of sub-section (1) of Section 26 of the latter can be held to be binding upon the Universities, yet for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give a direction for making one lime exception in favour of the examinees of the year 1996-97 stating that petitioners' legitimate expectations have been denied by the appellants and that fair-play requires that the aspirants of the existing system should have been put on notice by giving sufficient time. He has done so for the reason, inter alia, that the system was in vogue for the last more than two decades. Learned single Judge has stated in the judgment, there is no legal right to the intending persons to appear for the external examinations. It is only a privilege of benefit that is conferred on them to enable them to appear for such examinations. He has, however, proceeded to add, "At the same time it has to be seen that the very purpose of external examination system is to help the weaker sections women and other employed persons who cannot afford to go to regular colleges and it must be said that the scheme was introduced in public interest. When such a scheme is sought to be taken away and substituted by another modified scheme, in all fairness, the respondents ought to follow the principle of fairplay in action and should have given sufficient notice to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in private law to receive such treatment The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat person's legitimate expectation, it must afford him an opportunity to make representations on the matter. The Courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant." The Supreme Court in the case of Union of India v. Hindustan Development Corporation, AIR1994SC988 has pointed out that concept of legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implications underlying the administrative law," the Supreme Court has proceeded to add, "since we have not come across any pronouncement of this Court on this subject explaining the meaning and scope of the doctrine of legitimate expectation, we would like to examine the same a little more elaborately at this stage.'' and put the questions, "who is the expectant and what is the nature of the expectation ? When does such an expectation become a legitimate one and what is the foundation for the same ? What are the duties of the administrative authorities while taking a decision in cases attracting the doctrine of legitimate expectation. The Supreme Court has thereafter answered the above as follows : "28. Time is a three-fold present : the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension of their entry permits as an act of policy by the Home Secretary, who had announced that no discretionary benefits would be granted to this sect. The Court of Appeal held that they had no legitimate expectation of extension beyond the permitted time and so no right to a hearing, though revocation of their permits within that time would have been contrary to legitimate expectation. Official statements of policy, therefore, may cancel legitimate expectation, just as they may create it, as seen above. In a different context, where car-hire drivers had habitually offended against Airport Bye-laws, with many convictions and unpaid fines, it was held that they had no legitimate expectation of being heard before being banned by the Airport authority. There is some ambiguity in the dicta about legitimate expectation, which may mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case; absence of legitimate expectation will absolve the public authority from affording a hearing." "30. In some cases a question arose whether the concept of legitimate expectation is an impact onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be heard, it may be thought the more important to fair dealing that a promise or understanding given by a Minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power. I accept the submission of Counsel for the Secretary of State that the respondent cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy, it would be incumbent on him in dealing fairly to publish the new policy, unless again that would conflict with his duties. Had the criteria here needed changing for national security reasons, no doubt the respondent could have changed them. Had those reasons prevented him also from publishing the new criteria, no doubt he could have refrained from doing so. Had he even decided to keep the criteria but depart from them in this single case for national security reasons, no doubt those reasons would have afforded him a defence to judicial review as in the GCHQ case.'' "In Breen v. Amalgamated Engineering Union, (1971) 2 Queen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the Courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the Court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted, in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors. The judgment has proceeded to consider in some details and there is clear emphasis that to lie within the limits of judicial power, the notion of "legitimate expectation" must be restricted to the illumination of what is the legal limitation on the exercise of administrative power in a particular case and if the Courts were to define the content of legitimate expectations as something less than a legal right and were to prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which shuts the Court out of review on the merits, "particularly when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New South Wales' case the Courts should restrain themselves and restrict such claims duly to the legal limitations. It is a well-meant caution. Otherwise a resourceful litigant having vested interests in contracts, licences etc., can successfully indulge in getting welfare activities mandated by a directive principles thwarted to further his own interests. The caution, particularly in the changing scenario, becomes all the more important." 6. We have, thus, noted limitations of judicial review in entertaining a petition by the Court on the solitary doctrine of legitimate expectation. True, a case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. Unless we find that the decision taken by the appellants for changing the policy and the procedure of distant/non-formal education is arbitrary, unreas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of education is not just the right to enter into any institution, appear in any examination and obtaining a degree. It means truly educating oneself to acquire knowledge or skill and not just getting a degree. There is no encroachment upon the fundamental right of education under Article 21 of the Constitution of India by the policy change and there is no arbitrariness so as to attract Article 14 of the Constitution of India. There has been no promise as held by the learned single Judge by the Universities and/or the UGC which has been dropped. There has not been any such representation even by conduct by the Universities that there would be no change in the pattern of non-formal/distant education. Thus the cry of the petitioner-respondents that legitimate expectations are thwarted is not genuine.. State has a duty no doubt to see that all sections of people particularly weak and poor and women in particular are educated. Policy which would deny access to education to any such section of the people can be found to be undesirable and unreasonable but as we have noticed above there is no such denial of right to education to any section of the people except that they are requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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