Moninder Singh vs Uoi & Anr.
2010 Latest Caselaw 2334 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) No.7389/2008

                                      Date of Decision 03rd May, 2010


     MONINDER SINGH                          ..... Petitioner
                  Through Mr. B.S. Saini, Adv. with Mr. S.K. Tyagi,
                          Adv.

                versus


     UOI & ANR.                                  ..... Respondents

Through Mr. B.V. Niren, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J (Oral)

1. By this writ petition, the petitioner assails the rejection of his

candidature for consideration for appointment as a pilot with the

Indian Air Force. The facts giving rise to the present petition are

within a narrow compass and to the extent necessary are briefly

noticed hereinafter.

2. By an advertisement issued in March, 2008, the respondents

invited applications for appointment to the post of 3 Short Service

Commission (Men) Flying (Pilot) course and 32 SSC (Women) Flying

(Pilot) Course commencing in January, 2009 from eligible candidates.

The advertisement prescribed the following eligibility conditions:

"An unmarried Male or female Indian citizen, born between 02 Jan 86 and 01 Jan 90 (Upper age relaxable upto 02 Jan 84 for those having commercial Pilot License).

A first class Graduate (aggregate of 60% and above marks) in any discipline (three year course) with physics and Maths at 10+2 level or BE (Four year course). Final year students may also apply provided they do not have any backlog and have 60% marks in the previous year/semester and would qualify for a degree and submit the result by 15 Dec 2008.

At least 162.5 cms in height and have a leg length in the range 99 cms (min) and 120 cms (max)."

3. So far as the petitioner is concerned, it has been stated that he

had passed the Secondary School Examination, 2002 conducted by

the Central Board of Secondary Education which stands certified by

the Board on the 4th March, 2003. The petitioner had thereafter taken

admission to a Three Year Diploma Course in Mechanical Engineering

which was conducted by the Government Polytechnic, Ambala City,

affiliated to the Kurukshetra University. The petitioner successfully

completed the diploma course in mechanical engineering and was

issued a diploma in this behalf which was dated 27th September, 2005

by the State Board of Technical Education, Haryana.

4. After obtaining the diploma, the petitioner sought admission

under the Lateral Entry Scheme to the Bachelor of Technology Course

(Mechanical Engineering) which was being conducted by the

Maharishi Markandeshwar Engineering College in district Ambala, also

affiliated to the Kurukshetra University. The petitioner successfully

completed the course and was duly issued a degree in B. Tech.

(Mechanical Engineering) on the 6th October, 2008 by the Kurukshetra

University.

5. Desirous of pursuing a flying career in the Indian Air Force, the

petitioner made an application pursuant to the said advertisement

dated 11th March, 2008 under the category of candidates who were

possessed of the BE (Four year course) degree. A call letter dated

10th June, 2008 was received by the petitioner requiring him to appear

before the No.1 Air Force Selection Board, Dehradun on 30th June,

2008 to undergo the selection procedure for entry into the flying

branch of the Indian Air Force as a Pilot. When the petitioner reported

for undergoing the formalities which form part of the selection

procedure, the call letter issued to him was taken back by the

President of the Selection Board. The petitioner was informed that for

the reason that he did not possess the 10+2 examination certificate,

he was ineligible for undertaking the selection process and for

consideration for appointment as a pilot.

6. The petitioner made a representation dated 16th July, 2008 to

several authorities in this behalf and received a response dated 8th

September, 2008 from the Directorate of Personnel (Officers) at the

Air Headquarters. It was stated therein that the criteria for all entries

into the Flying Branch mandates that a candidate needs to have

undergone the 10+2 course with Maths and Physics as per para 7(b)

of the "Important Instructions" mentioned in the advertisement. It

was further stated that the wording of the advertisement may have

caused misinterpretation and that the advertisement had to be read

in its entirety. The petitioner was informed that he was eligible for

appointment into the Aeronautical Engineering (Mechanical) Branch in

the Indian Air Force and was exhorted to seek a career in the Air Force

under this category.

7. In view of the stand, the instructions mentioned at serial no.7 of

the "important instructions" mentioned in the advertisement may also

be considered in extenso and read as follows:-

"7. The following documents must be carried in original alongwith photocopies by the candidates while reporting to the Air Force Selection Board for tests:

(a) Matriculation or Secondary School leaving Certificate issued by Board of Secondary Education for proof of Date of Birth. (No other document would be accepted as proof of Date of Birth).

(b) +2 Certificate and Mark Sheet (issued by Board only) as proof of having studied Physics & Maths.

(c) Original/Provisional Graduation Degree Certificate. Mark Sheet issued by the University only. For those appearing for the final exams semester/year wise mark at sl. set is to be taken.

(d) In case of final year degree students, certificate from Principal of the College certifying that:-

"The candidate is a student of final year and is appearing for the final examination. In ___________ (Month & Year) and his final year result will be declared by 15 Dec 2008.

(e) Original Air Wing Senior Division `C' Certificate (if applicable). In case the candidate is to appear in the NCC `C' Certificate (Sr. Division) Examinations, a certificate from the Commanding Officer of the NCC Air Squadron is to be attached to the effect that the candidate will produce the certificate by 15 Dec. 2008.

(f) Original Commercial Pilot Licence (if applicable)."

8. Aggrieved by the rejection of his candidature, the petitioner has

filed the present writ petition seeking a direction to the respondents

to permit the petitioner to undertake the selection procedure for

appointment as a pilot with the air force. The writ petition came up

for hearing firstly on the 20th October, 2008 when Rule D.B. was

issued. On the interim application being CM No.14306/2008 filed by

the petitioner, this court had directed that if the petitioner succeeds in

the writ petition, he would be eligible to appear for the test.

9. The respondents have opposed the writ petition and filed a

counter affidavit primarily urging that the petitioner does not possess

the 10+2 certificate and that he has not undergone a four year BE

course. It is contended that the petitioner's entry in the Bachelor of

Engineering course was in its second year under the lateral entry

scheme and that he has actually undertaken only a three year BE

course. Reliance has been placed on the contents of para 7(b) of the

"Important Instructions" given in the afore-noticed advertisement to

submit that the petitioner was required to produce proof of his having

studied Maths and Physics at the 10+2 level.

10. The respondents have enclosed a copy of the communication

dated 16th July, 2008 sent by Air Cmde H.H. Patel, President of the

Indian Air Force Selection Board who has considered the case of the

petitioner. This communication notes that in the three year diploma

course, the petitioner had studied physics and maths only for the first

year and that for this reason, his diploma was not considered

equivalent to the 10+2 physics and maths. The communication also

mentions the following:-

"It is opined that there is indeed an ambiguity in the advertisement. As per the interpretation of the advertisement, a candidate who is BE doesn't need to have Physics and Maths at 10+2 level. (He could have done BE as lateral entry after Diploma without Physics & Maths in all the years of

Diploma). The anomaly in the advertisement needs to be addressed for future course. Meanwhile, the DISCLAIMER clause given in the advertisement could always be resorted to."

(Emphasis supplied)

11. The first question which arises for consideration in the present

case is the manner in which the advertisement prescribing the

eligibility conditions is required to be read. Perusal of the conditions

which have been prescribed by the respondents would show that two

categories have been provided. The first category consists of

applicants who are first class graduates in any discipline who have

secured an aggregate of 60% and above marks. Such graduation

degree may be possessed in any discipline after a three year course.

It is noteworthy that so far as such a graduate is concerned, an

additional condition is prescribed. The respondents have mandated

completion of the 10+2 level by such a graduate with Physics and

Maths.

12. The other category of persons eligible for applying for

appointment is persons holding a degree in Bachelor of Engineering in

a four year course. The qualification prescribed for this second

category of candidates is not qualified by any requirement of a school

leaving certificate. These two categories are distinct and disjunct as

is evident from the clear use of the expression `or' between the two.

13. Perusal of the "Important Instructions" also shows the

disjunctiveness of the two eligibility conditions. Clause 7 of the

"Important Instructions" mentioned in the advertisement provides the

documents which are required to be produced. The instructions

mentioned at serial no.7 of the important instructions have to be read

in conjunction with the eligibility conditions which have been

prescribed by the respondents. These instructions do not by

themselves provide any additional conditions. At serial no.7, the

respondents have only provided the documents which candidates are

required to produce in support of their claim for qualification.

14. From a bare reading of the advertisement, it is apparent that the

respondents have mandated that a candidate should possess either a

first class graduate degree in any discipline with physics and maths at

the 10+2 level or hold a degree in BE of a four year course. No other

interpretation of the conditions prescribed in the advertisement is

either possible or would be legally permissible. `BE' as appears in

the advertisement is a stand alone qualification not qualified with any

other requirement.

15. Such reading is also evident from the communication dated 16th

July, 2008 which has been sent by the President of the Indian Air

Force Selection Board noticed hereinabove. This communication

points out that as per the advertisement "a candidate who is a BE

does not need to have Physics or Maths at 10+2 level". We are,

therefore, unable to agree with the contention on behalf of the

respondents to the effect that a candidate who was possessed of a

degree of Bachelor of Engineering was required to have an additional

qualification of having Physics & Maths at the 10+2 level.

16. This bring us to the second question which has been raised in

the present matter. The respondents have submitted that the

petitioner had not undertaken a four year course in the Bachelor of

Engineering and for this reason he was not eligible for participating in

the selection process.

17. It has been further pointed out by Mr. Saini, learned counsel for

the petitioner that the Kurukshetra University was created under the

statutory provisions of Kurukshetra University Act, 1986 as a

teaching-cum-affiliating University at Kurukshetra. The Maharishi

Markandeshwar Engineering College is affiliated to the Kurukshetra

University. Section 15 of the enactment prescribes that the Executive

Council shall be the principal executive body of the University. By

virtue of Section 23, the Executive Council stands empowered to

make, amend, repeal or add Ordinances for the purposes of giving

effect to the statutory provisions. It has also been pointed out that

the Act also enables notification of statutes whereby assignment of

department/institute/school of studies to faculties have been effected.

18. Statute 27(7) notified in exercise of the statutory power

prescribes engineering and technology courses including mechanical

engineering.

19. So far as the course and examination of Bachelor of Technology

(B. Tech.) conducted by the Kurukshetra University is concerned, the

relevant ordinances notified by the Executive Council of the University

approved on 31st July, 1998.

20. The Executive Council of the Kurukshetra University amended

the ordinance relating to the Bachelor of Technology Examination by

its resolution No.6(12) of 25th January, 2002 to include a sub clause

(iii) and clause 7 enabling candidates with a diploma of three year

(after matriculation) course to take lateral entry to the third semester

level of the B. Tech. (Engineering) course in all colleges.

21. The Ordinance as amended vide executive council resolution

no.6(12) dated 25th January, 2002 provides as follows:-

"Notwithstanding anything contained in any other Ordinance with regard to the matters hereunder, the courses of study for the Degree of Bachelor of Technology in the Faculty of Engineering & Technology and the conditions for admission thereto shall be as under:-

1. (a)The Bachelor of Technology Degree Course shall extend over a minimum period of four academic years. Teaching in each academic year shall be divided into two semesters. Each semester will be of about 16 weeks duration. A candidate will be eligible to be considered for admission to the First Semester of this course only if he fulfils the following requirements:

(i) that he has passed the Senior Secondary Certificate Examination (10+2) Examination) from the Board of School Education, Haryana or its equivalent without any pending compartment/re-appeal.

(ii) that he has passed in the subjects of English, Physics, Chemistry and Mathematics and obtained at least 50% marks in the aggregate of Physics, Chemistry and Mathematics of Senior Secondary Certificate Examination (10+2 Examination);

(The condition of 50% marks shall not apply in t he case of candidates belonging to Scheduled Castes/Scheduled Tribes).

OR

(iii) that he has passed Diploma of 3-years (after Matric)/Diploma of 2-years (after +2) or of more duration from the State Board of Technical Education, Haryana or its equivalent with at least 50% marks in aggregate.

(b) Admission on migration to the Third Semester may be allowed, in the beginning of the Session, to candidates who are permitted to migrate in accordance with the rules framed by Kurukshetra University.

2. Candidates with Diploma of 3-years (after Matric)/Diploma of 2-years (after +2) 2-year Certificate Course (after Matric) Plus Diploma of 2- years or of more duration may be allowed Lateral Entry at 3rd Semester level of B. Tech. Degree Course in all Colleges in the Faculty of Engg. & Tech. Except Regional Engineering College, Kurukshetra. Such candidates will be considered

for admission to the 3rd Semester of B. Tech. In any discipline under Lateral Entry System only if they have passed Diploma Course in any discipline from the State Board of Technical Education, Haryana, or its equivalent with at least 60% marks in aggregate. The candidates must be valid residents of Haryana."

(Emphasis supplied)

22. The Ordinance makes provisions for the manner in which

semester examinations are required to be conducted; the course of

study and subjects of the examinations which includes written paper,

practical examination, sessional work etc. The same is not relevant

for the purposes of our present consideration. Suffice it to say, a

bare reading of the above Ordinance would show that the only course

for award of a degree of Bachelor of Technology conducted by the

Kurukshetra University is concerned, the same is for a period of four

academic years. No other course is provided for or recognised by the

Kurukshetra University. The Kurukshetra University, however, has

factored into its scheme of completion of the four year course of study

the fact that there may be persons who have already undergone a full

fledged diploma course which may be either of two year duration

(after 10+2) or a diploma of three year duration(after having

undergone matric).

23. The above Ordinance prescribes that such candidates who have

undergone and have acquired a diploma in engineering after a

secondary or a Higher Secondary Examination may be allowed lateral

entry on the third semester level of B. Tech degree course in all

colleges in the faculty of Engineering & Technology except at the

Regional Engineering College, Kurukshetra.

24. The examination scheme also shows that the four year degree

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course has been divided into six month semesters. The competent

authorities have equated three year diploma in Mechanical

Engineering after acquisition of the matriculation certificate to the

first year course of the B. Tech. degree course conducted in the

colleges affiliated to the Kurukshetra University.

25. So far as the maintenance of standards is concerned, the above

Ordinance has prescribed that candidates who are possessed of

diploma would be considered for admission to the three year bachelor

degree under lateral entry admission only after having passed the

diploma course in any institution from the State Board of Technical

Education, Haryana or its equivalent with at least 60% marks in

aggregate. There is no dispute that the petitioner had passed the

diploma course with more than 60% in aggregate.

26. Mr. Saini, learned counsel for the petitioner has also placed

reliance on the All India Council of Technical Education Act, 1987

(referred to as "AICTE Act" for brevity). The provisions of this

enactment provides for the establishment of the All India Council for

Technical Education (AICTE) for the purpose of proper planning and

coordinated development of the technical institutes throughout the

country, the provision of qualitative institutes in relation to proper

maintenance of norms and standards in the technical education

system and for matters connected therewith. Section 2(g) of this Act

includes programmes of education, research and training in

engineering technology within the meaning of "technical education".

The legislation provides for creation of the All India Council for

Technical Education whose functions are prescribed under Section 10

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of the Act. Section 10 enables the Council to take steps for ensuring

coordinated and integrated development of technical education and

maintenance of standards in technical education, laying down norms

and standards for courses, curricula, physical and instructional

facilities, staff pattern, staff qualifications, quality instructions

assessment and examination etc. conducted by the technical

institutions. By virtue of Section 10(k), the Council is enabled to grant

approval for starting new technical institutions and for introduction of

new courses or programmes in consultation with the agencies

involved. Section 22 provides for the rule making power of the

Council whereas under Section 23, the Council is further empowered

to make regulations to carry out the purposes of the Act. It needs no

elaboration that the AICTE is, therefore, the expert body statutorily

created for prescribing technical education including engineering

courses, their composition, curricular etc.

27. Learned counsel for the petitioner has placed before this court a

notification dated 12th January, 2007 issued by the AICTE in exercise

of powers conferred by sub section 1 of Section 23 read with Section

10(O) & (V) of the AICTE Act, 1987 notifying the regulations called the

"All India Council for Technical Education (AICTE) Admission of

Students in Degree Engineering Programmes through Lateral Entry

Regulations, 2007". Clause 3 of this notification provides the purpose

thereof which reads as under:-

"These regulations provide for admission of diploma holders and B.Sc. graduates into second year degree programmes in Engineering and technology through lateral entry."

The object of this regulation has to be found in para 6.1 (a)

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thereof which reads as follows:-

"6.1(a) Admission of Diploma Holders Although engineering diploma programmes are conceived as terminal in nature, some flexibility has to be built in to enable the meritorious amongst diploma holders to obtain Engineering degrees. There is evidence of diploma holders pursuing an Engineering programme having performed well not only in their academic careers but also in their jobs."

28. So far as the eligibility for lateral entry into the degree

programme is concerned, Clause 6.1(b) of the regulation prescribes as

follows:-

"6.1(b) Eligibility For being eligible to seek lateral entry to an Engineering degree programme at the second year/third semester level, a candidate must have passed the diploma in Engineering in the relevant branch with a minimum of 60 percent in the aggregate. Only candidates fulfilling these conditions would be eligible for appearing in the entrance test meant for selection of diploma holders for Lateral entry to degree programmes. The selection of candidates will be based on an entrance test, the merit ranking in the test being the basis of admission.

At present students obtain diploma through different programmes in different States/UTs. Such programmes have different structures and forms like the semester pattern, annual pattern, sandwich pattern, etc. In order to maintain uniformity, a common entrance examination seems essential. Further, it is necessary to select only meritorious students who have passed the diploma with good academic record.

A student who has acquired a diploma in Engineering through a minimum of three years of institutional study, after 10+ (Secondary School Leaving Certificate Examination) can be considered to be academically equivalent to a student who has passed the first year of the fouir year Engineering degree programme for which the qualifying examination is of the 12+ level (Physics & Mathematics)."

29. Mr. Saini, learned counsel for the petitioner has painstakingly

taken us through the requirements of the courses which the petitioner

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has undertaken.

30. It may be noted at this stage that even in the communication

dated 16th July, 2008, the respondents found that the petitioner had

actually taken Physics and Maths course in the first year Diploma

Course in Mechanical Engineering. It is not disputed that the

petitioner has successfully undergone a full fledged three year

diploma course before taking admission in the Bachelor of Technology

Degree course conducted under the aegis of the Kurukshetra

University.

31. The petitioner applied for and took lateral entry into the third

semester of the B.E. (Mechanical Engineering) course conducted at

the college affiliated to the Kurukshetra University. On successful

completion of the course, it is not disputed by the respondents that

the petitioner has acquired a degree in BE (Mechanical Engineering).

32. The respondents have, however, disputed the equivalence of the

lateral entry and the course completed by the petitioner to acquisition

of a degree on completion of a four year course.

33. We put a query to learned counsel for the respondents to the

effect as to whether there was any difference in the degree which was

awarded by the Kurukshetra University to candidates who secured

admission by lateral entry in the manner prescribed under the afore-

noticed provisions and a candidate who joined the engineering course

at the first semester. The answer was in the negative.

34. So far as the award of the degree is concerned, the competent

authorities have laid down norms and standards for courses,

curricula, physical and instructional facilities, staff pattern, staff

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qualifications, quality instructions assessment and examination etc.

The experts have looked into the course completed and degree

acquired by a candidate who has secured lateral entry into the

course. It cannot be disputed that the University is the expert

authority which has been enjoined with the task of laying down the

equivalence of the courses for the purpose of admission and award of

degrees is concerned. The same position stands confirmed by the

AICTE.

35. So far as the case in hand is concerned, one material fact

requires to be noticed. Learned counsel for the petitioner has pointed

out that the respondents invited applications from eligible candidates

for appointment to the post of Aeronautical Engineer (Mechanical)

Branch. So far as the eligibility conditions which are prescribed for

such appointment is concerned, the respondents have prescribed a

Bachelor of Engineering (B. Tech.) in Aeronautical Engineering

(Mechanical), production, industrial or combination of this as one of

the eligibility condition. The petitioner was considered as possessed

of a valid qualification and was issued a letter dated 30th June, 2008

for joining the course for AE (M) commencing on 7th July, 2008 for this

position. However, for the reason that the petitioner was committed

to flying and to pursue a career in the Indian Air force, he opted not to

join the same.

36. It has been urged on behalf of the respondents that keeping in

view the subject requirement of persons flying as pilots with the

Indian Air Force, the respondents alone are the experts to decide the

equivalence or expertise of the candidate. It is contended that the

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petitioner had not undertaken the four year course and therefore

could not be construed as eligible for joining the air force. It has also

been urged that the petitioner had not cleared the 10+2 examination

with Physics & Mathematics and for this reason as well, he was

ineligible.

37. These submissions deserve to be noted only for the sake of

rejection. Perusal of the advertisement shows that any person who

has cleared 10+2 examination with Physics and Maths and holds a

first class Graduate degree in any discipline is eligible. Therefore, a

person who may have completed the 10+2 course may opt to

undertake a graduate course in any discipline which could include

home science, painting, tourism, history, anthropology etc. So long as

he secured above 60% marks in such course, he would be eligible for

joining the air force as a pilot.

As against this, persons as the petitioner, who have successfully

completed a three year diploma in mechanical engineering; permitted

to take a lateral entry into the second year (or the third semester) of

the Bachelor in Engineering Four Year Course, by the University and

institution concerned and on successful completion of the course,

stands awarded the degree of the four year course, is considered not

eligible for such appointment. If the construction suggested by the

respondents were to be accepted then a candidate with a higher

secondary certificate and a graduation in humanity has the

educational qualification for appointment as a pilot while a candidate

who has undertaken six years of study in mechanical engineering

stream. Such an interpretation of the eligibility conditions is not only

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devoid of any basis but is irrational and devoid of any logic or basis.

38. So far as the non possession of a certification of the 10+2

examination with Physics & Maths is concerned, we have noticed

above that the same does not qualify the second stipulation of

requirement of the BE course in the advertisement even if it were to

be held that it was essential. It has been so noted even by the

President of the Selection Board who has also observed that the

petitioner had undertaken a course in Physics & Maths in his first year

diploma. There is no requirement that any candidate is required to

take physics or maths in the engineering course by the respondents.

39. To say the least, the stand taken by the respondents suffers

from contradictions. The same is not supported by the advertisement

issued by the respondents pursuant whereof the petitioner had

submitted his application. The respondents did not at any point of

time prescribed that candidates who took lateral entry into four year

course would not be eligible.

40. The stand of the respondents is also in the teeth of the

requirement of the AICTE Act and the Kurukshetra University Act

wherefrom the petitioner has been awarded the degree. The

respondents have not disputed that the petitioner has a valid

engineering degree by the authorities who have been statutorily

enjoined with the task of assigning the eligibility, validity and

equivalence of the courses. The AICTE and Kurukshetra University

has considered the three year diploma course after matriculation, as

equivalent to one year undertaken by a candidate for the four year

engineering course. The degree which is held by the petitioner is of

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BE four year course and none else. In this background, it does not lie

in the mouth of the respondents to dispute the eligibility of petitioner

for undertaking the selection process pursuant to the advertisement

issued by them.

41. At this stage, it has been submitted by the respondents that the

petitioner has been rendered ineligible on account of passage of time

for joining the course even if he was to be selected.

It may be noted that no such objection to the petitioner's

candidature was raised when he applied for the same. The petitioner

was eligible even when he was called for undertaking the selection

process on the 30th June, 2008. He was not permitted to undertake

the selection process by the respondents on the erroneous

assumption of his being ineligible.

42. We find that this court while issuing notice to the respondents on

CM No.14206/2008 on 20th October, 2008 had clearly clarified that if

the petitioner succeeds in the writ petition, he would be eligible to

appear for the test in question. This order was passed in the presence

of the respondents and remains in force even on date. At no point of

time, the respondents have taken an objection to this effect.

43. The petitioner was wrongly not permitted to undertake the

testing on 30th June, 2008 for which he had reported vide Batch No.F-

FPM/80429 against the Code No.568.

44. In view of the above, the writ petition has to succeed. The

petitioner is entitled to undertake the selection process which is to be

held by no.1 Air Force Selection Board pursuant to the application

which was submitted by him.

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45. In view of the above, the respondents are directed to conduct

the selection process of the petitioner and if found eligible, the

petitioner would be considered. Necessary orders in this behalf shall

be positively passed within three weeks.

The petitioner shall be entitled to costs which are quantified at

Rs.20,000/-.

GITA MITTAL, J

INDERMEET KAUR, J MAY 03, 2010 aa

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