Kripa Shankar vs Union Of India & Ors
2019 Latest Caselaw 1716 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Reserved on: 14.02.2019
                                           Pronounced on: 27.03.2019
+      W.P.(C) 15825/2006
       KRIPA SHANKAR                                   ..... Petitioner
                       Through:         Mr. Prashant Srivastava &
                                        Mr.Deepak Mahajan, Advs.
                               versus
       UNION OF INDIA & ORS                           ..... Respondents

                     Through:           Mr. Ajay Digpaul, CGSC with
                                        Mr. Soumava Karmakar and
                                        Ms. Madhuir Dhingra, Advs.
                                        for R-1/UOI.
                                        Mr. Aproov Kurup, Mr.Avinash
                                        Rathi and Ms. Nidhi Mittal,
                                        Advs. for UGC
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
MR.JUSTICE PRATEEK JALAN
%

1. This writ petition is directed against orders passed by the Central Administrative Tribunal (hereinafter, "the Tribunal") dated 13.01.2006 in O.A. No. 1960/2004 and 31.7.2006 in RA No. 106/2006.

2. The writ petitioner was the applicant in O.A. No. 1960/2004. He moved the Tribunal against an order dated 04.08.2004 by which the respondent no. 3 herein had been promoted to the post of Assistant Registrar in the Central Excise and Service Tax Appellate Tribunal (hereinafter, "CESTAT") and sought a direction for a review Departmental Promotion Committee (hereinafter, "DPC"). It is undisputed that the petitioner and respondent no. 3 were both Court

Masters in CESTAT and respondent no. 3 was the senior of the two. However, the petitioner's principal contention was that respondent no. 3 did not possess the qualification for appointment as Assistant Registrar in CESTAT, inasmuch as he did not have a degree in law of a recognized university or equivalent. It was, therefore, contended that the petitioner was, in fact, the senior most Court Master amongst those who were duly qualified and thus eligible for the promotion which was granted to respondent no. 3. The contention of respondent no. 3 was that he held the degree of Bachelor of General Law (hereinafter, "BGL") from Annamalai University which he had obtained after undertaking a two year correspondence course. The petitioner disputed the status of the said degree as one which was equivalent to a degree in law.

3. By the impugned order dated 13.01.2006, the Tribunal held that the said degree is recognized for the purpose of employment/promotion in the Central Government in view of a communication of the Department of Revenue, Ministry of Finance dated 07.08.1998. However, the promotion of respondent no. 3 was quashed and a review DPC was ordered on the ground that the petitioner's case also ought to have been considered in the DPC. The petitioner sought review of this order to the extent that the respondent no. 3 had been found eligible for the post in question. The petitioner's application for review was however dismissed by the second impugned order dated 31.07.2006.

4. During the pendency of this petition, this Court had initially (by order dated 13.10.2006) stayed the order of the Tribunal, insofar as it

held respondent no. 3 eligible for the post. However, by a subsequent order dated 03.11.2006, the Court recorded that respondent no. 3 had been promoted to the post of Assistant Registrar on regular basis on 22.06.2006 and ordered as follows:-

"We, therefore, modify our order dated 13.10.2006 in the circumstances before us to direct that the respondent may continue in its present posting pending decision of the writ petition and the same shall be subject to outcome of the writ petition."

5. Mr. Prashant Srivastava, learned counsel for the petitioner submitted before us that the status of degrees obtained by correspondence from Annamalai University has since been settled conclusively by the decision of the Supreme Court in Annamalai University vs. Secretary to Government, Information and Tourism Department and Others (2009) 4 SCC 590, wherein it has been held that these degrees are not recognized. He relied upon a notification dated 01.03.1995 issued by the Ministry of Human Resource Development, Government of India which recognized qualifications awarded through distant education by universities and deemed universities subject to their approval by the Distance Education Council Indira Gandhi Open University, New Delhi (hereinafter, "DEC"), and argued that the Supreme Court has held post-facto approval granted by DEC to be illegal and invalid.

6. Mr. S. Sunil, learned counsel for respondent no. 3 accepted that the degree obtained by respondent no. 3 did not have prior approval of the DEC but submitted that the Supreme Court's decision in Annamalai was not applicable as it was rendered in the context of a

dispute as to the eligibility for admission to a Master's degree without a three year undergraduate degree. He also drew our attention to the Court's observation in paragraph 58 of the said judgment that DEC's orders "ordinarily would only have a prospective effect" to submit that the Supreme Court had not conclusively invalidated retrospective approvals granted by the DEC in all cases. Mr. Sunil relied upon the judgment of a Full Bench of the Andhra Pradesh High Court in S.S.R.N. Sarma vs. Registrar (Adminstration.), High Court of A.P. (1997) 2 AP LJ 98 (SN) which has recognized the BGL degree of the University of Mysore as sufficient for the purposes for the promotion to the post of Assistant Registrar in that High Court.

7. Learned Counsel for both the petitioner and respondent no. 3 were in agreement on the occurrence of some subsequent developments which may bear significance in respect of the relief that can be granted in this petition. They submitted that the petitioner has also been promoted to the post of Assistant Registrar in 2007, one year after the respondent no. 3 was promoted. Further, respondent no. 3 has also, in the meantime, obtained an LL.B. degree in the year 2015 which now places his qualification beyond controversy. Both of them are presently serving as Assistant Registrars and will be eligible for promotion as Deputy Registrars, for which five years' service as Assistant Registrar is required. They also submitted, and it was confirmed by learned Standing Counsel for the Union of India, that there are several vacant posts of Deputy Registrar in CESTAT for which both the petitioner and respondent no. 3 would be eligible to be considered.

8. Having heard learned counsel for the parties, the first question for determination is whether the BGL Degree of Annamalai University held by respondent no. 3 at the time of his promotion was correctly held to be a qualifying degree. The essential qualifications prescribed in the relevant Recruitment Rules, notified on 05.12.1994, were as follows:-

"ESSENTIAL (I) DEGREE IN LAW OF A RECOGNISED UNIVERSITY OR EQUIVALENT (II) THREE YEARS‟EXPERIENCE IN ADMINISTRATIVE/LEGAL MATTERS."

9. The question of whether the BGL degree of Annamalai University could be recognized as equivalent to a degree in law of a recognized university was referred by CESTAT to the Department of Revenue, Ministry of Finance. After consultation with the Department of Personnel and Training, the Department of Revenue, by a communication dated 07.08.1998 confirmed the equivalence in the following terms:

"I am directed to refer to the correspondence resting with your letter F.No. 40/20/CEGAT/95-RR, dated 22.5.98, on the subject cited above and to state that the matter has been examined in consultation with the Department of Personnel and Training and it has been held that the Annamalai University is a recognised University, therefore, the certificates/degrees issued by them are automatically recognised for the purposes of employment/promotion in Central Government. As such BGD degree issued from that University is also recognised aiblt its being not recognised as a professional degree."

10. Significantly, the said communication dated 07.08.1998 does not advert to the requirement of any approval of DEC although this condition had been expressly incorporated in the relevant notification of the Ministry of Human Resource Development dated 01.03.1995, which is extracted below :

"No. 44, F. No. 18-15/93-TD.V/TS.IV.- On the recommendation of the Board of Assessment for Educational Qualifications, the Government of India has decided that all the qualifications awarded through Distance Education by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the UGC Act, 1956 and Institutions of National Importance declared under an Act of Parliament stand automatically recognised for the purpose of employment to posts and services under the Central Government, provided it has been approved by Distance Education Council, Indira Gandhi National Open University, K-76, Hauz Khas, New Delhi-110016 and wherever necessary by All India Council for Technical Education, IG Sports Complex, I.P. Estate, New Delhi-110002."

11. The grant of a post facto approval by DEC to Annamalai University was the subject matter of consideration in the Supreme Court's Annamalai judgment. The relevant finding of the Court is contained in paragraph 58 of the judgment which is reproduced below:

"58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5-5-2004 that the appellant University had no jurisdiction to confer such degrees, in our opinion,

could not have validated an invalid act. The degrees become invalidated in terms of the provisions of the UGC Act. When mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect."

12. In our view, this settles the issue against respondent no. 3. The emphasis placed by Mr. Sunil on the word "ordinarily" is misplaced as respondent no. 3 has not been able to show any special dispensation applicable to the present case, or any circumstance which would warrant a departure from the ordinary consequence indicated by the Supreme Court. In view of the Supreme Court's judgment, rendered long after the judgment of the Andhra Pradesh High Court in S.S.R.N. Sarma (supra), the said decision also cannot justify the stand taken on behalf of respondent no. 3. For the same reason, the advice tendered by the Department of Revenue to the CESTAT in 1998 is also of no assistance.

13. The natural consequence of the above discussion is that the Tribunal's conclusion regarding the validity of the degree possessed by respondent no.3 at the time of his promotion was erroneous and is required to be set aside. However, the subsequent developments referred to in paragraph 7 hereinabove led Mr. Sunil to make an alternative prayer that, instead of setting aside the promotion of respondent no. 3 after such a long period of service, his appointment to the post may be reckoned, for the purposes of further promotion, from the year 2015 when he obtained the LL.B. degree, and the petitioner's service in that post be considered, to have commenced

from 22.06.2006 when respondent no. 3 was promoted on regular basis. He reiterated that the promotion of respondent no. 3 was not irregular or procedurally vitiated at the time of his appointment, and in fact was granted after obtaining the specific advice of the Ministry of Finance, in consultation with the Department of Personnel and Training. Learned counsel for the petitioner is also agreeable to this course of action. Learned counsel for the Central Government too did not urge the contrary. Keeping in mind the peculiar facts of this case, we accept the suggestion made, and direct that the petitioner herein - who was the most senior eligible candidate at the time of the 2004 DPC, be treated as having been promoted to the post of Assistant Registrar on the date on which respondent no. 3 was in fact promoted. Respondent no. 3 having obtained the LL.B. degree in 2015 will in turn be treated as having been promoted from the date he acquired the said qualification. These directions will be taken into account while considering the eligibility of both these candidates for further promotion to the post of Deputy Registrar, and not for any other purpose.

14. The writ petition is disposed of in the aforesaid terms, with no order as to costs.

PRATEEK JALAN, J

S. RAVINDRA BHAT, J MARCH 27, 2019/„pv‟