Akhtar Ali Ansari & Anr. vs State Of U.P.& 3 Ors.
2014 Latest Caselaw 4352 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 

 
Case :- WRIT - A No. - 60876 of 2013
 

 
Petitioner :- Akhtar Ali Ansari & Anr.
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- Rahul Agarwal
 
Counsel for Respondent :- C.S.C.,H.P. Mishra,Rizwan Ali Akhtar,V.P. Mathur,V.P. Varshney
 

 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

This petition has been filed assailing the Government Order dated 4th March, 2013 pursuant whereto the respondent Rural Engineering Department has proceeded to enlist the candidates for promotion to the post of Assistant Engineers from the post of Junior Engineers. The said list dated 18.3.2013 followed by the letter convening the departmental promotion committee to proceed in accordance with the said list is also under challenge.

The petitioners basically contend that the respondent no. 4 and similarly situate candidates who possess invalid degrees of graduation in engineering cannot be promoted to the post of Assistant Engineer for want of such qualification. The challenge is that the respondent no. 4 and the other members whose names are contained in the list and have obtained such degrees are ineligible.

At the very outset Sri Rahul Agarwal, learned counsel for the petitioners submits that this petition is confined only to the promotional matter relating to the civil branch. The Junior Engineers who are diploma holders are entitled for being promoted to the extent of 8.33% of the posts earmarked for them. The requisition was sent by the Public Service Commission on 8th of March, 2013 and it is in pursuance thereof that the lists are being prepared for the aforesaid quota of promotion for which the departmental promotion committee has already met.

The bench which earlier heard the matter entertained the petition and called for a counter affidavit on 11th November, 2013. The departmental promotion committee came to be postponed and as such the matter was thereafter listed on 25.11.2013 and 2.12.2013 before different benches and later came to be heard on 9.12.2013 on which date the learned counsel for the Public Service Commission gave a statement that the Public Service Commission will not hold the departmental promotion committee without the leave of the court. This order was modified on 19.12.2013 that the proceedings of the departmental promotion committee may be concluded and the result shall be kept in a sealed cover and will be opened with the leave of the court. The matter was again taken up on 2nd April, 2014 and the following order was passed:-

"Hon'ble Arun Tandon,J.

Hon'ble Arvind Kumar Mishra-I,J.

One of the issues up for consideration in the present writ petition is as to whether an institution established in the State of Rajasthan and has been declared to be a deemed University under Section 3 of the University Grants Commission, has any territorial limits or not and as to whether such a deemed University has the power to open an off campus centre at any place in India. It is desirable that respondent no. 1 may examine the matter and file an affidavit in that regard by the next date fixed.

Petitioner is also directed to implead University Grants Commission through its Chairman as respondent no. 5 during the course of the day and serve a copy upon the counsel for the U.G.C., Shri R.A.Akhtar, Advocate.

The University Grants Commission may file an affidavit of an officer not below the rank of Secretary, stating as to whether a deemed University has a right to open an off campus centre at any place it so like or it has a territorial limit. The affidavit shall be filed by 28.04.2014.

Till 28.04.2014, interim order shall continue in operation.

When the matter is listed next, name of Shri V.P. Varshney, Advocate shall be shown in the cause list as one of the counsels for the respondents.

List on 28.04.2014."

The said interim order therefore even continues thereafter when the matter came to be connected with Writ Petition No. 33641 of 2014 which is a writ petition filed by candidates of another stream of the mechanical branch contending that the interim order passed in the present writ petition should not effect their promotional prospects as no such eligibility dispute arises in their case. Thus the petitioner of that writ petition has prayed for a mandamus to declare the results in respect of the mechanical branch which is not affected at all by the present petition.

The following order was passed in that writ petition on 3.7.2014:-

"Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the petitioner and Sri M.N. Singh for the respondents.

The petitioner has come up for a declaration of the results of D.P.C. met on 11th of March, 2013.

According to the petitioner, the Junior Engineer (Civil) have filed Writ Petition No. 60876 of 2013 in which an interim order has been passed on 29.12.2013 placing the result of the D.P.C. in a sealed cover.

The contention of the petitioner is that the petitioner is of the Mechanical Branch and therefore his case is decipherable from the matter which are pending in the aforesaid writ petition.

In our opinion, it would be appropriate that this writ petition be connected alongwith the aforesaid writ petition.

List in the next cause list alongwith Writ Petition No. 60876 of 2013."

Both the matters are nominated to this bench and accordingly we have heard the learned counsel for the parties.

Having traversed the records and having heard learned counsel for the petitioners, we find that the basic challenge raised in this petition is to the qualification possessed by such Junior Engineers who have obtained their degree in graduation courses of B.Tech. from off campus of three deemed universities. One is the J.R.N. Rajasthan Vidyapeeth, the other is IASE Deemed university Rajasthan and Allahabad Agricultural Institute, Allahabad, Deemed University ( now known as Sam Higginbottom University). One of the other qualifications which is being questioned is that of the off-campus of Birla Institute of Technology, Mesra (Ranchi) at Naini Allahabad.

The ground of challenge is that all such degrees which are obtained by such candidates including the respondent no. 4 are unrecognized degrees and do not have sanction of either the University Grants Commission or the All India Council for Technical Education.

For this Sri Rahul Agarwal has invited the attention of the Court to the letter of the University Grants Commission dated 9th August, 2005 copy whereof is Annexure 5 to the writ petition and the letter of the University Grants Commission dated 13th June, 2009. He has further invited the attention of the court to the letter of the All India Council for Technical Education dated 17.5.2010 and the letter dated 31.10.2012 which are Annexures CA-8 and CA-8A to the counter affidavit of the private respondent no. 4 to contend that no approval either from the University Grants Commission to run an off-campus centre is available to all these universities nor the All India Council for Technical Education has given any sanction or approval for such courses being run. He further submits that such courses do not comply with the norms and standard prescribed by the AICTE from time to time and in the circumstances allowing such candidates with such degrees which are unrecognised to participate in the selections would amount to inviting competition between eligible and ineligible candidates.

Sri R.A. Akhtar, learned counsel for the University Grants Commission has produced before the court the instructions received from the UGC dated 25th April, 2014 which is extracted herein under:-

Ref: Writ Petition no. 60876 of 2013

Akhtar Ali Ansari & Anr. Vs. State of U.P. & Ors.

The panel advocate Shri Rizwan Ali Akhtar vide letter dated 11.4.2014 requested for the UGC comments in the above matter in the issue that whether an institution established in the State of Rajasthan and has been declared as deemed to be university has any territorial limits or not and as to whether such a deemed university has the power to open an off-campus centre at any place in India.

The comments of CPP-I Section on the above issue are as under:-

i) The Government of India, Ministry of Human Resource Development on the advice of UGC under Section 3 of UGC Act, 1956 declared the IASE Gandhi Vidya Mandir, Sardarshar, Rajasthan as deemed to be university vide Notification No. F.9-29/2000-U.3 dated 25th June, 2002. The Deemed to be University can award degrees from its main campus in UGC approved courses in regular mode. The Deemed to be University can also conduct the courses allied to its approved courses. The UGC has not granted any approval to this deemed to be university to run the courses through Study Centre(s).

ii) The Government of India, Ministry of Human Resource Development on the advice of UGC under Section 3 of UGC Act, 1956 declared the JRN Rajasthan Vidyapeeth Udaipur, Rajasthan as deemed to be university vide Notification No. F.9-5/84-U.3 dated 25th January, 1987. The Deemed to be University can award degrees from its main campus in UGC approved courses in regular mode. The Deemed to be University can also conduct the courses allied to its approved courses. The UGC has not granted any approval to this deemed to be university to run the courses through Study Centre(s).

iii) The UGC vide letter No. F.6-7/2003 (CPP-I) dated 16.3.2004 (Flag 'A') circulated UGC guidelines for establishing new departments within the campus, setting up of off-campus center(s)/institution(s)/off-shore campus and starting distance education programmes by the deemed universities.

iv) The said guidelines have a provision for the deemed to be universities for establishing off-campus centre by the deemed to be universities. Clause 2.2 of the guidelines is reproduced as under:

'The new department, new off-campus centre/institution shall be set up only after obtaining approval of the UGC and that of the concerned State Government where such a centre is proposed to be established. The UGC shall cause spot visit/verification of the proposed new departments, new off-campus centre/institutions to verify its infrastructure facilities, programmes, faculty, financial viability, etc. before giving permission to start the centre. The report of the committee shall be considered by the Commission for its approval.'

v) For starting distance education programmes by Deemed to be Universities. Clause 4 of these guidelines is reproduced as under:

'The Deemed to be University could offer the distance education programmes only with the specific approval of the Distance Education Council (DEC) and the University Grants Commission (UGC). As such any study centre(s) can be opened only with the specific approval of Distance Education Council and UGC.'

vi) As per UGC record the JRN Rajasthan Vidyapeeth and IASE, (Deemed to be University), Rajasthan have no off-campus centre.

vii) The UGC has not granted any permission to JRN Rajasthan Vidyapeeth and IASE, (Deemed to be University), Rajasthan to conduct courses in the field of Engineering & Technology under regular mode.

viii) The UGC has not granted any permission to JRN Rajasthan Vidyapeeth and IASE, (Deemed to be University), Rajasthan to establish any study centre and/or to conduct courses under distance mode through franchisee.

ix) As per the UGC guidelines, "study centre" means a centre established and maintained recognised by the university for the purpose of advising, counselling or for rendering any other assistance required by the students used in the context of distance education. As such JRN Rajasthan Vidyapeeth cannot conduct courses through study centres.

x) UGC vide letter No. 6-1(7)/2006 (CPP-I) dated 5.10.2007 and 19.5.2005 (Flag-B) informed as under:-

c) Courses under distance mode should be conducted only with the prior approval of DEC and UGC.

d) Private franchising of higher education is not permissible.

Further, the SO, Legal Section is requested to obtain the comments of Distance Education bureau, UGC in the matter please."

Apart from this, Sri Rahul Agarwal has relied on the division bench judgment of the Punjab and Haryana High Court in Writ Petition no. 1640 of 2008, Kartar Singh Vs. Union of India and others, decided on 6.11.2012 to contend that such degrees that emanate from off-campus centres have been declared to be invalid and having no force of any qualification so as to treat them to be valid. He contends that such a qualification from the aforesaid universities which were under consideration before the Punjab and Haryana High Court therefore be treated to be invalid. The contention therefore is that inviting such candidates for being promoted by the State Government would be unlawful.

The aforesaid judgment of the Punjab and Haryana High Court has been carried forward and is under challenge before the Apex Court where the following interim order was passed on 7.12.2012 in SLP(C) No. 35793-35796:-

"Hon'ble Mr. Justice A.K. Patnaik

Hon'ble Mr. Justice H.L. Gokhale

Issue notice returnable by 14th December, 2012 by dasti mode only.

In the meanwhile no adverse action will be taken against the students whose Degrees have been declared to be illegal by the impugned order of the High Court.

A list of Special Leave Petitions challenging the very same order of the High Court has been given by Dr. Rajiv Dhawan and Mr. Ratnakar Dash, learned senior counsel for the respondents jointly. List all these petitions on 14th December, 2012 along with these petitions."

This was followed by another order dated 14.12.2012:-

"Hon'ble Mr. Justice A.K. Patnaik

Hon'ble Mr. Justice H.L. Gokhale

I.A. Nos. 13-14 in SLP (C) No. 35793-35796 of 2012:

Applications for deleting the names of Respondent Nos. 7-10, 12, 13 and proforma Respondent Nos. 15 to 146 in S.L.P. (C) No. 35793 of 2012 and proforma Respondent Nos. 2 to 22 in S.L.P. (C) No. 35796 of 2012 are allowed at the risk of the petitioners and they are deleted from the array of parties.

Affidavit of the Dasti service in respect of all remaining respondents will be filed by tomorrow, i.e., 15th December, 2012.

S.L.P. (C) No. 38458 of 2012, SLP (C) Nos. 35793-35796 of 2012, S.L.P. (C) No.37028 of 2012, S.L.P. (C) No.37957 of 2012, S.L.P. (C) No.38211 of 2012, S.L.P. (C) No. 38220 of 2012, S.L.P. (C) No. 38230 of 2012, S.L.P. (C) No. 38458 of 2012 and SLP (C) .....CC 22353 of 2013:

Exemption allowed. Permission to file petition for special leave in SLP (C)......CC No. 22353 of 2012 is allowed.

Application for filing lengthy synopsis and list of dates is allowed.

Issue notice returnable within two weeks.

Dasti service, in addition, is permitted.

List the matters for considering the interim relief on 21st January, 2013.

In the meanwhile, the students whose Degrees and Diplomas have been declared null and void by the High Court in the impugned order may apply for either employment or for admission if the cut-off dates are going to expire before 21st January, 2013."

The aforesaid matters are still being posted before the Apex Court and are listed in the month of August as informed by the learned counsel for the both the parties. Sri Rahul Agarwal submits that such matters are in relation to direct recruitment and not in relation to promotion and it is for this reason that an interim protection was granted to those candidates who were seeking fresh appointment. He therefore submits that the aforesaid interim orders of the Apex Court do not in any way take away the impact of the division bench judgment of the Punjab and Haryana High Court aforesaid and he urges that the recommendations made as well as the government order which treats such persons to be qualified should be quashed. It is urged that the present matter relates to promotions, and not direct recruitment, therefore, in the absence of any stay against the judgment of the Punjab & Haryana High Court, the interim orders quoted above do not adversely impede the arguments raised herein.

The Public Service Commission has filed a counter affidavit and we have heard Sri M.N. Singh, learned counsel for the Commission who submits that this being a question of eligibility the Commission has practically no role to play and it is between the petitioner and the State Government and the private respondent. The State Government has filed a counter affidavit supporting its government order dated 4.3.2013 without adding anything further.

Sri H.P. Mishra, learned counsel for the contesting respondent no. 4 has urged that the aforesaid contentions are not available to the petitioners, inasmuch as, the same government order dated 4th March, 2013 after taking notice of the earlier communications has been upheld by a division bench of this court in a writ petition filed by the answering respondent no. 4 to which the Public Service Commission and the State Government are parties. He submits that the said judgment has a binding effect and the answering respondent and other similarly situate candidates having been considered to be eligible with such degrees, cannot now be non-suited and the government order dated 4.3.2013 cannot be quashed by this coordinate bench.

The judgment in Writ Petition No. 29640 of 2012 dated 10.5.2013 copy whereof is Annexure 11 to the writ petition is extracted herein under:-

"Hon'ble Vineet Saran,J.

Hon'ble B. Amit Sthalekar,J.

Heard Sri H.P. Mishra, learned counsel for the petitioners as well as learned Standing Counsel for the State.

The petitioner is a Junior Engineer of Rural Engineering Services Department. He claims that he would be eligible for promotion to the post of Assistant Engineer. However his case was not considered because of the order dated 1.1.2010, whereby the degrees obtained from J.R.N. Rajasthan Vidyapeeth and R.A.S.E. Deemed University were not recognised. In paragraph 4 of the counter affidavit it is being stated that the State Government vide its letter dated 4.3.2013 has cancelled earlier order dated 1.1.2010 and that now "there is no legal impediment in including the names of the petitioners in the eligibility list under degree quota in order of seniority".

In such view of the matter, since after the issuance of the Government Order dated 4.3.3013 the degrees of the petitioners are duly recognised by the State Government, the case of the petitioners deserves to be considered for promotion by the said authorities.

Accordingly, this writ petition stands allowed to the extent that the names of the petitioner shall be included in the list of eligible candidates for promotion as Assistant Engineer under the degree quota and shall be considered for such promotion in the order of seniority. Since the petitioners no.2 is due to retire shortly the respondents may expedite the process of promotion and make every effort that the grant of promotion is finalised as expeditiously as possible. No other prayer has been pressed by the learned counsel for the petitioner.

This writ petition is allowed to the extent as indicated above."

Sri Mishra therefore submits that this issue is no longer res-integra between the State, the Public Service Commission and the answering respondent no.4, as such the present petition deserves to be dismissed and the interim order deserves to be vacated.

Replying to the aforesaid submissions Sri Rahul Agarwal contends that the judgment dated 10th May, 2013 proceeds on the assumption that the government order dated 4.3.2013 is valid. Learned counsel submits that the petitioners had no occasion to point out the infirmity in the said government order as has been raised in the present petition as the petitioners were not parties to the said writ petition. He further submits that it is not understood as to why the learned Standing Counsel for the Public Service Commission or the State did not raise these issues, nor the court itself delved into an examination of the impact of such degrees and their validity. He submits therefore that the aforesaid judgment is not binding on the petitioners and the issue is open for examination in the present writ petition. He submits that this court should treat the aforesaid judgment as not having laid down any law on the validity of the government order dated 4.3.2013 which is under challenge in the present writ petition, and deserves to be treated as obiter, or in the alternative he submits that this would be a fit case where a reference be made to a larger bench on account of the issues having been raised in the present petition with regard to the validity of the Government Order dated 4.3.2013 and of the degrees possessed by the candidates who fall in the category of the respondent no. 4 to be answered authoritatively in the background of the facts indicated above.

He further submits that the government order dated 4.3.2013 is even otherwise unsustainable, inasmuch as, it proceeds to refer to the letter dated 1.1.2010 which was only a communication to one of the candidates Mr. P.K. Mishra who is ineligible on account of possessing such a qualification. A copy of the said letter is Annexure 10 to the writ petition which discloses that the AICTE has not given any recognition to the degrees which are subject matter of dispute in the present controversy. He submits that his communication to a private person was sought to be cancelled by a government order dated 4.3.2013 which procedure is unsupportable in law.

He submits that a mere communication cannot be made the foundation of the issuance of a government order so as to validate the degrees which are otherwise invalid on facts. He further submits that the assumption that the All India Council for Technical Education is not required to give any such recognition to the courses under question and therefore such degrees are valid, is an assumption without foundation and against law.

The contention is that neither the University Grants Commission recognises the off-campus degrees nor the State Universities are authorised to run such off-campus centres. In that view of the matter any degree emanating from such off-campus centre is also invalid which issue has not been considered by the State Government while issuing the impugned government order. He therefore contends that the division bench while proceeding to deliver the judgment and allowing the writ petition on 10th May, 2013 treating the respondent no. 4 or such other candidates to be eligible cannot be considered to lay down the correct law. He contends that even otherwise the judgment does not exactly pronounce upon this issue and therefore there is no ratio decidendi in the aforesaid judgment that may impede the challenge raised to the government order dated 4.3.2013 in the present petition.

Having considered the aforesaid submissions raised as well as the division bench judgment dated 10th May, 2013, we also find it difficult to subscribe to the view that such a degree as possessed from an off-campus by the respondent no. 4 and similarly situate candidates can be treated to be a valid degree. The reasoning given by the division bench judgment of the Punjab and Haryana High Court which is a very detailed judgment and on a fuller consideration of all such provisions appears to be more appropriately defining the position of law as urged by Sri Rahul Agarwal for the petitioners. We therefore find it difficult to hold that the government order dated 4.3.2013 amounts to recognizing invalid degrees. Merely because the government order facilitated the consideration of such candidature, the observation of the division bench that the degrees possessed by such candidates are duly recognised that entitles them for consideration for promotion, does not appear to be laying down the correct law, inasmuch as, the division bench has nowhere investigated the issue of the validity of the degrees. The government order dated 4.3.2013 has also not examined the issues as raised aforesaid. Apart from this the stand of the University Grants Commission taken before us also clearly indicates that this issue relating to the validity of such degrees has neither been approved nor recognised by the University Grants Commission. The universities that have issued such degrees have to be run as deemed universities as defined under section 3 of the UGC Act. The University Grants Commission, therefore, in our considered opinion, has the authority to allow a particular university to run particular courses. The university therefore cannot be presumed to be having an authority to run off-campus centres and award degrees from outside their territories which issues have been dealt with in detail by the Punjab and Haryana High Court division bench referred to hereinabove.

It is also clear that the matter has been taken to the Apex Court where the matter is being debated on the validity of such degrees but here we are faced with another division bench judgment interse between the respondent no. 4 and the State Government and the Public Service Commission to which the petitioners are not a party. In this background since we are unable to respectfully subscribe to the view expressed by the division bench in writ petition no. 29640 of 2012, differing on the issues that have been clearly raised by the learned counsel for the petitioners in the present case, we find it appropriate that the matter be referred to a larger bench for an authoritative pronouncement on the issue which has arisen in the present controversy.

Consequently, we frame the following questions for being referred to a larger bench on account of the conflict that we find arises on the facts referred to hereinabove as follows:-

(i) Whether the Division Bench in its judgment dated 10.5.2013 has rightly proceeded to observe that the degrees through off-campus centres in relation to the disputed Universities referred to hereinabove have been validated as per the Government Order dated 4.3.2013 and are duly recognized in law, and if not, then whether the Division Bench was correct in upholding the degrees as recognized on the basis of the said Government Order ?

(ii) Whether the Government Order dated 4.3.2013 amounts to validating such degrees that are otherwise invalid in view of the communications of the University Grant Commission and All India Council for Technical Education ?

(iii) Whether the view taken by the Division Bench without assessing the validity of such degrees can be said to be justified only on the mere recital contained in the Government Order dated 4.3.2013 ?

(iv) Whether the Government Order by itself is a valid executive instruction proceeding to cancel an administrative communication with one of the contenders on 1.1.2010, and if not then whether the view expressed by the Division Bench upholding the same can be said to be valid in law ?

Accordingly, in view of the questions framed hereinabove, we direct that this matter be placed before Hon'ble the Chief Justice under the High Court Rules for considering constituting a larger Bench to resolve the conflict.

We further provide that the interim order passed by this Court and continued from time to time would stand modified to the effect that this interim order shall operate only in respect of such Junior Engineers, who are of the civil branch and it shall have no effect on the other branches including mechanical branch as involved in Writ Petition No.33641 of 2014 where we have issued a separate mandamus today. This modified order shall continue until further orders.

We further direct the petitioners to implead the All India Council for Technical Education with its particulars within a week as respondent no.6. Issue notice to the newly impleaded respondent returnable within three weeks. Steps within a week. The said respondent may also file its response within the said period.

List accordingly.

Order Date :- 13.8.2014

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