Dipankar Das vs The Union Of India And 5 Ors
2022 Latest Caselaw 2540 Gua

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GAHC010052802017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/7342/2017

         DIPANKAR DAS
         S/O SHRI LAKSHMI MOHAN DAS PERMANENT RESIDENT OF LUMDING
         WARD NO. 1, ANANDAPALLY HOUSE NO. 619, P.O. LUMDING P.S.
         LUMDING DIST. HOJAI PIN - 782447, ASSAM



         VERSUS

         THE UNION OF INDIA and 5 ORS.
         REP. BY THE SECRETARY TO THE GOVT.OF INDIA, MINISTRY OF HUMAN
         RESOURCE and DEVELOPMENT, DEPARTMENT OF EDUCATION, SHASTRI
         BHAWAN, C-WING, DR. RAJENDRA PRASAD ROAD, NEW DELHI- 110001.

         2:THE DIRECTOR

          INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI
          GOVT. OF INDIA
          GUWAHATI- 781039
          ASSAM

         3:SHRI BHASKAR CHOUDHURY
         ASSISTANT EXECUTIVE ENGINEER
          INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI
          GOVT. OF INDIA
          GUWAHATI - 781039
         ASSAM

         4:SHRI SUNIRMAL BHATTACHARJEE
         ASSISTNAT EXECUTIVE ENGINEER
          INDIAN INSTITUTE OF TECHNOLOGY
          GUWAHATI
          GOVT. OF INDIA
          GUWAHATI - 781039
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             ASSAM

            5:THE CHAIRMAN
             UNIVERSITY GRANTS COMMISSION (UGC)
             BAHADUR SHAH ZAFAR MARG
             NEW DELHI-110002.

            6:THE CHAIRMAN
            ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE)
             NELSON MANDALA MARG
            VASANT KUNJ
             NEW DELHI-110060

Advocate for the Petitioner   : MS. D GOSWAMI

Advocate for the Respondent : SC, IIT

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 28-07-2022

Heard Ms. D. Goswami, learned counsel for the petitioner and Ms. R. Devi, learned counsel for the respondent No. 1, being the authorities under the Ministry of Human Resource and Development, Government of India. Also heard Mr. R.P. Kakoti, learned Senior counsel assisted by Mr. S. Sutradhar, learned counsel for the respondent No. 2, being the authorities under the Indian Institute of Technology, Guwahati (IIT-G), Mr. U.K. Nair, learned Senior counsel assisted by Mr. A. Chakrabarty, learned counsel for the respondent No. 3 Shri Bhaskar Choudhury, Mr. G.N. Sahewalla, learned Senior counsel assisted by Mr. A.B. Dey, learned counsel for the respondent No. 4 Shri Sunirmal Bhattacharjee and Mr. A. Chamuah, learned counsel for the respondent No. 5, being the authorities under the University Grants Commission (UGC). Although an affidavit-in-opposition is on record filed by Ms. P. Tamuli, learned counsel for respondent No. 6, but none appears for the said respondent when the matter is taken up for hearing today.

2. An advertisement was issued by the Registrar of the respondent IIT-G dated 25.11.2016, inviting online applications, amongst others, for two posts of Page No.# 3/10

Assistant Executive Engineer (Civil), where both the posts were of unreserved category. The minimum qualification provided in the advertisement is bachelor's or equivalent degree in engineering from a recognized university/institute. The relevant portion of the advertisement providing for the minimum qualification is extracted as below:

"3. Assistant Executive Engineer (Civil) - 02 Posts (UR) Pay Band : PB3; Rs. 15600-39100/-, Grade Pay : Rs. 5400/- Minimum Qualification:

(1) Bachelor's or Equivalent Degree in Engineering from a recognized University/Institute.

(2) Having Minimum 6 years of working experience. Should have experience in estimating, tendering supervising, billing, etc. in Civil Engineering (applicable as per requirement of the Institute) in large multistoried buildings, roads, in autonomous body and in Central, State, PSUs, other similar organizations in their respective field.

Desirable : At least 2 years of experience as Senior Assistant Engineer or in equivalent post in Grade Pay of Rs. 4800/- or above in Civil Works out of total 6 years of working experience.

Age : Below 35 years."

3. The petitioner along with the respondents No. 3 and 4 participated in the selection process. In the resultant selection, the respondents No. 3 and 4 were found to have a better claim for appointment in order of merit and accordingly, both of them were appointed as per the orders of appointed dated 01.05.2017. Annexure 5 to the writ petition provides for the details of marks secured by the respective candidates. As per the details of the marks, the writ petitioner Shri Dipankar Das had secured 64.5 marks, the respondent No. 3 Shri Bhaskar Choudhury had secured 75.2 marks and the respondent No. 4 Shri Sunirmal Bhattacharjee had secured 68 marks, all out of a total of 100 marks. As apparently in the selection process, the respondent No. 3 Shri Bhaskar Choudhury was the first candidate in order of merit and the respondent No. 4 Shri Sunirmal Bhattacharjee was the second candidate in order of merit, they Page No.# 4/10

were offered the respective appointments. It is taken note of that the petitioner Shri Dipankar Das having secured 64.5 marks was the third candidate in order of merit.

4. The appointments of the respondent No. 3 Shri Bhaskar Choudhury and respondent No. 4 Shri Sunirmal Bhattacharjee are assailed by the writ petitioner on the ground that their respective bachelor degrees or equivalent degrees in engineering from a recognized university/institute as provided in the advertisement were not acceptable in law. In other words, they are not valid degrees.

5. As regards the qualification of respondent No. 3 Shri Bhaskar Choudhury, it is contention of the writ petitioner that the said respondent had obtained his bachelor or equivalent degree in engineering from an institute namely Institute of Advance Studies in Education (IASE), which is stated to be a deemed to be university. As regards the respondent No. 4 Shri Sunirmal Bhattacharjee, it is the contention of the petitioner that the qualification of the said respondent is a degree in Bachelor of Science in Engineering Technology from an institute namely Birla Institute of Technology and Science at Pilani (for short 'BITS Pilani').

6. Mr. U.K Nair, learned Senior counsel for the respondent No. 3 Shri Bhaskar Choudhury refers to the decision of the Hon'ble Supreme Court in the case of Orissa Lift Irrigation Corporation Limited Vs. Rabi Sankar Patro and Ors. reported in (2018) 1 SCC 468 [hereinafter referred to as 'Orissa Lift Irrigation Corporation Limited (i)'], wherein the issue before the Supreme Court was on the acceptability of the engineering degrees from certain institutes, including the IASE. Prima facie the Hon'ble Supreme Court found the degrees offered by such institutes to be unacceptable in law but at the same time, due Page No.# 5/10

consideration was also given to the consequences that the students who obtained such degrees would ultimately have to bear and upon such consideration, in paragraph 66.4, it was provided that such category of students who had obtained their engineering degrees from the institutes concerned including the IASE, be given no more than 2(two) chances to clear tests to be conducted by the All India Council of Technical Education (AICTE) and the entire expenditure in conducting the test by the AICTE be recovered from the deemed to be universities concerned from where the degrees were obtained.

7. After the judgment of the Hon'ble Supreme Court rendered in Orissa Lift Irrigation Corporation Ltd. (i) (Supra), the candidates who were to have undertaken the tests to be conducted by the AICTE, moved applications before the Hon'ble Supreme and such applications were considered in the order rendered in Orissa Lift Irrigation Corporation Limited Vs. Rabi Sankar Patro & Ors. reported in (2018) 2 SCC 298 [hereinafter referred to as 'Orissa Lift Irrigation Corporation Limited (ii)']. In such applications, the applicants whose degrees obtained from the deemed to be universities were suspended earlier, had raised a concern that they may lose their jobs which they had obtained through such degrees. Accordingly, the Hon'ble Supreme Court in paragraph 26.1 of the said judgment in Orissa Lift Irrigation Corporation Ltd. (ii) (supra) provided that all such candidates who wish to appear in the tests to be conducted by the AICTE in May/June, 2018, can retain the degrees in question and all the advantages flowing therefrom for a period of one month after declaration of the result of the test or up to 31.07.2018, whichever was earlier. Thereafter, in paragraph 26.2, it was provided that the said facility was given as an one time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience, by further Page No.# 6/10

providing that if the candidates pass any such test in first attempt, they would be entitled to retain all the advantages. Paragraph 26.1 in the case of Orissa Lift Irrigation Corporation Limited (ii) (supra) is extracted as below:

"26.1. All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May-June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31-7-2018 whichever is earlier."

8. According to Mr. U.K.Nair, learned counsel, the respondent No. 3 Shri Bhaskar Choudhury had availed the opportunity and successfully passed out the test conducted by the AICTE in the first attempt itself. Accordingly, as per the law pronounced by the Supreme Court in Orissa Lift Irrigation Corporation Ltd.

(ii) (supra), the degree of Bachelor of Engineering of the respondent No. 3 obtained from IASE was a valid degree for all purposes and time and therefore, the contention of the petitioner that the said degree is unacceptable would have to be rejected.

9. Having gone through the provisions laid down by the Hon'ble Supreme Court in Orissa Lift Irrigation Corporation Ltd. (i) (supra) and Orissa Lift Irrigation Corporation Ltd. (ii) (supra) and also having considered the factual aspect that the respondent No. Shri Bhaskar Choudhury had passed the AICTE test held in May/June, 2018, in the first attempt itself, the degree obtained by the said respondent from the institute IASE would have to be considered to be a valid engineering degree for all purposes. Accordingly the selection and appointment of the respondent No. 3 pursuant to the advertisement dated 25.11.2016, on the basis of his degree of Bachelor of Engineering from the IASE would have to be accepted to be valid in law without requiring any interference.

10. As the regards the acceptability of the qualification of the respondent No. 4 Shri Sunirmal Bhattacharjee, it is taken note that Shri Bhaskar Choudhury had Page No.# 7/10

obtained a qualification of Bachelor of Science in Engineering Technology from BITS Pilani in the state of Rajasthan. We have taken note that as per the advertisement, the required minimum qualification is bachelor's or equivalent degree in Engineering from a recognized university/institute.

11. It is the submission of Ms. D Goswami, learned counsel for the petitioner that a bachelor degree or equivalent degree in Engineering from a recognized University or an Institute and a degree of Bachelor of Science in Engineering Technology from BITS Pilani are neither the same nor equivalent to each other.

12. To have a proper appreciation of the issue that the qualification of Bachelor of Science in Engineering Technology from BITS, Pilani is neither the same nor an equivalent of the required minimum qualification of a bachelor degree in Engineering from a recognized University or an Institute, we deem it proper to refer to the views of the AICTE as well as the UGC in their respective affidavits. The AICTE in their affidavit with reference to the aforesaid question in paragraph 6 takes a stand that the word 'Work Integrated Learning Program (WILP) of BITS Pilani which is a deemed to be university is not an AICTE approved program and that the AICTE approval is necessary for a technical program conducted by the deemed to be university. According to the AICTE, the course leading to the Bachelor of Science in Engineering Technology of the BITS Pilani is an integrated learning program, which is a unique program for working professionals conducted without the approval of the AICTE. Although the BITS Pilani may be a deemed to be university, but it cannot claim to have the approval of AICTE with regard to the courses that it had offered. But the AICTE leaves it to the UGC for its clarification as to whether the WILP offered by BITS Pilani was approved by the UGC or not. The relevant extracts of the stand of the AICTE on the issue whether the qualification of Bachelor of Science in Page No.# 8/10

Engineering Technology from the BITS Pilani is an acceptable qualification or not is extracted as below:

"The work integrated learning program (WILP) of BITS Pilani, a deemed to be university is not an AICTE approved program. Deemed to be University does not require AICTE approval till Supreme Court opined in 2017, that AICTE approval is necessary for technical programs conducted by deemed to be universities."

"The integrated learning program is not a regular full time course nor it is Distance Education course as claimed by the BITS Pilani. It is a unique program for working professionals conducted without the approval of the AICTE. The deemed University cannot claim to have the approval of AICTE. But the BITS Pilani claims that the course is approved by UGC. Hence the UGC would clarify that whether WILP being conducted by the BITS Pilani was approved by UGC or not."

13. In this respect, the stand of the UGC in their affidavit-in-opposition is that the Bachelor of Science in Engineering Technology of BITS Pilani has never been a specified degree of UGC under Section 22 of the UGC Act, 1956 and, therefore, the said degree cannot be treated as a recognized degree. The relevant portion from paragraph 13 of the UGC is extracted as below:

"13. The Answering Respondent on behalf of the UGC begs to submit that the Bachelor of Science in Engineering Technology has never been a specified degree of UGC under Sec 22 of UGC Act, 1956. Therefore, the said degree cannot be treated as a 'Recognised Degree'.

14. A reading of the stands of the AICTE and the UGC makes it discernible that the qualification of Bachelor of Science in Engineering Technology from BITS Pilani is neither an approved educational program of the AICTE nor the qualification is a recognized degree by the UGC. As the qualification of Bachelor of Science in Engineering Technology from BITS Pilani is not an approved program of the AICTE nor it is a recognized degree of the UGC, we have to understand that the requirement of the advertisement dated 25.11.2016 of the Registrar IIT-G providing for the minimum qualification of Bachelor's or Page No.# 9/10

equivalent degree in Engineering from a recognized University/Institute would not be satisfied by the qualification of Bachelor of Science in Engineering Technology from BITS Pilani as obtained by the respondent No.4 Sri Sunirmal Bhattacharjee.

15. As it is a conclusion as per the views and inputs of the AICTE and UGC that the qualification of Bachelor of Science in Engineering Technology from BITS Pilani is not a recognized degree, we have to understand that the respondent No.4 Sri Sunirmal Bhattacharjee did not have the necessary minimum qualification to participate in the selection process pursuant to the advertisement dated 25.11.2016 of the IIT-G Registrar for the post of Assistant Executive Engineer (Civil). As the respondent No.4 Sri Sunirmal Bhattacharjee did not have the required minimum qualification, we have to understand that his participation, selection and the consequential appointment would have to be declared to be non est and invalid in law and accordingly, it is so declared.

16. We take note of the details of marks obtained by the respective candidates in the selection process pursuant to the advertisement dated 25.11.2016 of the Registrar IIT-G from which it is discernible that if the selection of the respondent No.4 Sri Sunirmal Bhattacharjee having secured 68 marks out of 100 is taken out of contention, it would be the writ petitioner Sri Dipankar Das who having secured 64.5 marks to have otherwise been the second selected candidate in order of merit.

17. Accordingly we require the respondents in the IIT-G to pass an appropriate reasoned order based on the aforesaid observation firstly that the respondent No.4 Sri Sunirmal Bhattacharjee did not have the required minimum qualification as per the advertisement dated 25.11.2016 of the Registrar IIT-G and secondly, the writ petitioner Sri Dipankar Das as per the details of marks at Annexure-5, Page No.# 10/10

page 35 to the writ petition would have to be construed to be the second selected candidate as per the order of merit and provide for the consequential actions and benefits. The reasoned order be passed within a period of four months from the date of receipt of a certified copy of this order.

Writ petition is partly allowed to the extent as indicated hereinabove.

JUDGE

Comparing Assistant