Satyanarayana Rana vs State Of Odisha & Others
2021 Latest Caselaw 803 Ori

        A.F.R

                                 ORISSA HIGH COURT : C U T T A C K

                                      W.P.(C) NO.5217 OF 2018

            In the matter of an application under Articles 226 & 227 of the
                                 Constitution of India


        Satyanarayana Rana                               : Petitioner

                                    -Versus-

        State of Odisha & others                         : Opp. Parties


                For petitioner        :   M/s.M.K.Mishra, Sr.Adv.,
                                          U.C.Mohanty, T.Sahoo
                                          & B.K.Swain

                For O.Ps.2 & 3        :   M/s.B.K.Sharma, A.V.Senapati,
                                          S.Palei, S.K.Singh & S.Das.


        PRESENT:-

                THE HONOURABLE MR. JUSTICE BISWANATH RATH

          Date of hearing : 13.01.2021         &   Date of Judgment :25.01.2021


Biswanath Rath, J.          This writ petition involves a challenge to the order

        of reversion dated 22.3.2018 passed by the Managing Director,

        Odisha Lift Irrigation Corporation Ltd. (in short, "the Corporation"),

        O.P.3, particularly involving the person placed at serial no.2 therein,

        vide Anexure-1 and further to declare the petitioner to be legally

        entitled to continue and function as an Assistant Engineer (Civil) and

        the petitioner should not be reverted to the cadre of Junior Engineer

        (Civil) besides granting all consequential service benefits attached to
                                     2



the post of Assistant Engineer (Civil) and also entitlement to benefits

accrued in the meantime.

2.                 Factual narrations appearing from the pleadings of

the parties are that the petitioner initially joined in the Corporation

in the year 1990 as a Junior Engineer (Civil) on regular basis

through regular process of selection. In course of his continuing as

Junior Engineer (Civil), being a Diploma Holder the petitioner

acquired Degree Qualification in Civil Engineering, B.Tech. (Civil) in

the year 2009 through distance mode from the JRN Vidyapitha

(Deemed University). While the matter stood thus, ten numbers of

Graduate Engineers in Agriculture, who also joined initially as

Junior Engineers (Civil), were subsequently appointed as Assistant

Engineers-in-charge and Ad hoc Assistant Engineers filed O.J.C.

No.13251/2001 claiming their regular appointment as Assistant

Engineer (Civil). This writ application had a background involving

earlier subject matter of dispute in O.J.C. No.2920/1990 in the

matter of fixation of inter-se seniority as per the Orissa Junior

Engineers Cadre (Recruitment and Conditions of Service) Rules,

1972 so also the Orissa Junior Engineers Conditions of Cadre Rules,

1982, disposed of by this Court on 14.1.1994 directing the

Government of Orissa in the Rural Development Department to

consider   the   grievance   of   Graduate   Engineers   and   Diploma

Engineers regarding fixation of their seniority in the cadre of Junior
                                   3



Engineers. It was observed therein that it was open to the parties to

file their objection and the decision of the Government would also be

subject to challenge by such parties in appropriate forum. It is

pursuant to such direction, Government of Odisha in Rural

Development Department by its communication dated 30.9.1994

directed that twenty-two numbers of Graduate Engineers would be

adjusted against the vacant posts of Assistant Engineer or against

future vacancies in such posts till these twenty-two numbers of

Graduate Engineers are adjusted. It is involving this decision, there

arose a number of writ petitions at the instance of the Diploma

Engineers taking advantage of the liberty granted by this High Court

in the above order. Consequently, these parties filed O.J.C.

No.6937/1994.    This    matter   was   heard    along   with   OJC

No.13251/2001. These matters were disposed of on 14.12.2009

recording the submission of the learned counsel appearing for the

Corporation that the Corporation has taken decision in the light of

direction issued by the Government, vide letter dated 30.9.1994 to

absorb the Graduate Junior Engineers in the posts of Assistant

Engineer. The present petitioner was neither a petitioner in the said

writ applications nor an opposite party in these writ applications.

The order dated 14.12.2009 passed in the said writ application was

also beyond the knowledge of the petitioner. It is at this stage, the

petitioner preferred W.P.(C) No.563 of 2010 on 11.1.2010 making
                                  4



therein   a   prayer    for   consideration    of   his   case    for

promotion/appointment as Assistant Engineer (Civil) being an in-

service Graduate Engineer standing at par with the persons involving

the cases indicated herein above. This writ petition was listed on

18.1.2010. In course of hearing, when the order dated 14.12.2009

passed in OJC No.13251/2001 was brought to the notice of this

Court, learned counsel appearing for the Corporation did not raise

any objection, this Court upon hearing both the parties, however,

disposed of W.P.(C) No.563/2010 on 18.1.2010 on contest by simply

recording the submission of Sri Mohanty, learned counsel for the

Corporation in respect of the order dated 14.12.2009 passed in OJC

No.13251/2001 directing the Corporation to engage all Graduate

Junior Engineers in the posts of Assistant Engineer in consonance

with the Notification issued by the Government and in disposal of the

Review Petition, this Court directed to consider the case of the

petitioner herein along with other Graduate Engineers in the line of

Government Notification dated 30.9.1994 referred to hereinabove. It

is consequent upon the above direction of the High Court, it appears,

the Managing Director of the Corporation, vide letter no.4149

dtd.11.3.2010 wrote to the Special Secretary to Government in W.R.

Department clarifying the position regarding the vacancies of

Assistant Engineers (Civil) mentioning therein that out of eighty-one

sanctioned posts of Assistant Engineer (Civil), sixty-five numbers of
                                        5



such posts are lying vacant by 11.3.2010, out of which twenty-seven

numbers of posts are to be filled up against the promotion quota of

33% following the Orissa Service of Engineers of Rules, 1941. The

Corporation in its Board of Directors' meeting dated 29.3.2010

though considered the cases of the parties taking into account the

direction of this Court dated 14.12.2009 in O.J.C. No.13251/2001

but however did not consider the case of the opposite party being a

Graduate Junior Engineer and thereby caused discrimination to the

opposite party therein. The Board of Directors of the Corporation in

the proceeding of its 161st meeting dated 25.3.2011 at item no.12

decided for filling up the base level vacant posts in the cadre of

Junior    Engineers    and   Assistant     Engineers    for   administrative

requirement and in the 162nd meeting of the Corporation dated

5.7.2011 at item nos.9 & 10 proceeded to appoint a Committee to

consider the cases of six persons for regular appointment, as

Assistant Engineers in compliance of the direction of this Court.

Another Committee meeting was held under the Chairmanship, F.A.

& C.E.O. on 21.7.2011 and discussed regarding available vacancy in

the cadre of Assistant Engineer (Civil) involving thirty numbers of

vacant posts and at item no.2 therein also considered the vacant

posts    in   Electrical   Wing   in   five   numbers    and    accordingly

recommended for appointment of such persons again in compliance

of the order of this Court, which were already landed in contempt
                                           6



proceedings. Those six persons approached this Court whose cases

were decided on 7.1.2010 and not contested by the opposite parties.

Keeping in view the order of this Court dated 14.12.2009 passed in

OJC    No.13251/2001          the   direction    of    the   High   Court   was

implemented and all the six persons were appointed in their

respective posts, vide office order dated 10.8.2011. In the meantime,

vide communication dated 9.9.2011, the Managing Director of the

Corporation     also   directed     all   the   Superintending      Engineers/

Executive Engineers of the Corporation for submission of information

in   respect   of    Junior   Engineers       having    B.Tech./AMIE    Degree

Qualification for consideration of their cases as against the existing

vacancies in the cadre of Assistant Engineers so as to comply with

the orders of the High Court passed in the meantime. It is alleged

that it is, at this point of time, in spite of development through WP(C)

No.563/2010 the petitioner being a B.Tech./Degree Graduate

Engineer was continued in the Corporation as Junior Engineer, his

case was not considered giving a complete discriminatory treatment

to the petitioner.

                     A Review Petition was also filed by the Corporation

involving the order of this Court dated 18.1.2010 passed in W.P.(C)

No.563/2010. It is alleged that listing of the Review Petition was

avoided keeping in view to avoid the Judge passed the order in the

writ petitions and to make their attempt before a new Judge on the
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superannuation of the Judge passing the order. Documents supplied

by the parties disclose that the Review Petition was heard along with

other writ petitions involving parallel orders by a new Bench and all

these review petitions have been dismissed.

3.                Sri M.K. Mishra, learned senior counsel being

assisted by Sri U.C.Mohanty, learned counsel for the petitioner

bringing to the notice of this Court the aforesaid facts contended that

the petitioner joined as a regular Junior Engineer in 1991. As per the

Government Notification, the post of Junior Engineer has been

upgraded to the post of Assistant Engineer in the Government

Establishment, which was also being followed by the Corporation

involving similarly situated persons. It is complained that when the

Orissa Service of Engineers Rules, 1941 postulates that 33% of the

posts in Assistant Engineer shall be filled up by way of promotion

quota, which is also being followed in the Rules amended in the year

2012 and there have been several numbers of vacancies in the cadre

of Assistant Engineer (Civil), the Corporation even though upgraded

the status of some of the Graduate Junior Engineers, who have also

approached this Court like the petitioner, but did not upgrade the

position of the petitioner while giving benefit to other similarly

situated persons. However, after much persuasion and pursuant to

disposal of the W.P.(C) No.563 of 2010 vide Annexure-2, vide

communication dated 16.5.2012, the Corporation communicated
                                      8



that pursuant to the direction of the High Court in a batch of writ

petitions   including   that   of   the   petitioner   numbering    WP(C)

No.563/2010 also involving a batch of contempt petitions appointed

the petitioner along with several others whose names find place in

the said communication of Asst. Engineer (Civil), but however on

ad hoc basis in the Scale of Pay of Rs.6500-700-10500/- with usual

D.A., H.R.A. and M.A. etc. however subject to final outcome of

Special Leave Petition filed by the Corporation. It was also indicated

therein that the persons named therein given appointment in the

said order are to be confirmed which is again subject to approval of

their Degree by the Technical Committee of the Administrative

Department.    Taking   through     the   orders   passed   in   SLP(Civil)

Nos.19814-19815 of 2012 taken up along with SLP(Civil) Nos.19807-

19808 of 2012 with several similar cases, Sri Mishra, learned senior

counsel submitted that for the protection granted by the Hon'ble

Supreme Court therein and the petitioner having been enrolled for

Degree Certificate during the Academic Session 2001-05, in clear

contravention of the direction of the Hon'ble Supreme Court, the

Corporation instead of waiting for the outcome in the examination to

be conducted as per the direction of the Hon'ble Supreme Court

illegally reverted the petitioner to the former post of Junior Engineer,

vide order dated 22.3.2018 under Annexure-1. Taking this Court to

the direction part of the decisions of the Hon'ble Supreme Court
                                    9



involving 1st judgment in the case of Orissa Lift Irrigation

Corporation Ltd. vrs. Rabi Sankar Patro and Ors. : (2018)ISCC

468 as well as in the case of Orissa Lift Irrigation Corporation

Ltd. vrs. Rabi Sankar Patro & Ors. : (2018)2 SCC 298 both

involving the petitioner as well as the persons like the petitioner vis-

a-vis the Corporation, Sri Mishra, learned counsel for the petitioner

contended that for the clear direction and observation of the Hon'ble

Supreme Court, there was no room for the Corporation to revert the

petitioner from the position he was allowed, vide Annexure-1.

Referring to certain clarifications being raised on the direction of the

Hon'ble Supreme Court in the cases involving completely outside

parties vide Ashok Kumar and Ors. Vrs. Depinder Singh Dhesi &

Ors. : (2019) 8 SCC 280, reading through paragraphs-10, 12, 13 &

15 therein, Sri Mishra, learned senior counsel for the petitioner

contended that for the Hon'ble Supreme Court's direction through

the above decisions permitting the petitioner and others like the

petitioner having Degree Certificates from JRN Vidyapitha (Deemed

University), providing such persons at least to clear the Special

Examinations/Tests to be conducted by the AICT & UGC combined

at least in two chances provided giving their consent to appear in

such tests by 15.1.2018 more particularly covering the candidates

obtaining such Degree in between 2001-2005 and the petitioner

referring to the document at Annexure-5 of the brief establishing
                                   10



through the same that the petitioner having already registered

himself to appear in the test to be conducted in terms of the direction

of the Hon'ble Supreme Court and further giving reference to the

document trough the rejoinder affidavit in response to the counter of

O.Ps.2, 3 & 4 for the petitioner passing out in the second test

following the direction of the Hon'ble Supreme Court was required to

be restored with his position as Assistant Engineer (Civil). Sri

Mishra, learned senior counsel here also taking this Court to the

observations of the Hon'ble Supreme Court in the 1st judgment vide

(2018) I SCC 468, 1st order in (2018) 2 SC 298 and 2nd order in

(2019) 8 SCC 280 contended that even assuming that the petitioner

though registered himself to be a candidate to appear in the first test

but did not appear in the said test, but however, the petitioner

appeared in the 2nd test and got qualified. Taking into account the

observation of the Hon'ble Supreme Court in the above decisions, in

the worse the Degree involving the petitioner would have been

invalidated/kept under suspension at least till he could have cleared

the second test. Under the direction of the Hon'ble Supreme Court

and reversion from the post, if any, for not appearing in the first test

or failing in the first test would have been also subject to the

outcome in his appearance in the second test. Taking this Court to

the pleading in the writ petition as well as in the rejoinder and

establishing through the pleading as well as the documents that the
                                    11



petitioner following the direction of the Hon'ble Supreme Court had

not only registered himself for appearing in the tests to be conducted

in terms of the direction of the Hon'ble Supreme Court and the

Hon'ble Supreme Court having provided two options minimum to

each of the persons involved and the petitioner having appeared in

the second test and passing out being established through the

further certificate in confirmation of the Degree of the petitioner, vide

the rejoinder affidavit, there was no occasion on the part of the

Corporation to revert the petitioner from the position of Assistant

Engineer to Diploma Junior Engineer at least till expiry of the first

test to be conducted in the light of the direction of the Hon'ble

Supreme Court in the month of May-June, 2018. It is taking to the

further pleading that the first test was scheduled to be conducted in

between May and June of 2018, as per the direction of the Hon'ble

Supreme Court requiring to fill up the posts for the purpose on

15.1.2018 and the petitioner since already registered himself by

15.1.2018 established through Annexure-5 of the writ petition. Sri

Mishra, learned senior counsel for the petitioner submitted that

since the first test was to take place between May and June of 2018

and considering that petitioner had already shown his interest to

appear in the 1st test, there was absolutely no occasion on the part

of the Corporation to revert the petitioner on 22.3.2018 vide

Annexure-1. It is, in this view of the matter and further for the
                                    12



direction of the Hon'ble Apex Court in paragraph nos.57, 58 and

66.6 in the judgment vide (2018) I SCC 468, Sri Mishra, learned

senior counsel for the petitioner while pressing the relief claimed by

the petitioner and seeking to quash the order at Annexure-1 also

requested this Court to direct the Corporation while restoring the

petitioner's position in the post of Assistant Engineer also to grant all

consequential relief including financial benefits and any further

upgradation to similarly situated persons taking place in the

meantime.

4.                 Sri   B.K.Sharma,     learned    counsel    for   the

Corporation, the contesting O.P., while not disputing the fact of first

round of litigation by the petitioner, submitted that in fact the first

writ petition was at the instance of similarly situated persons

through W.P.(C) No.13251 of 2001 and several other writ petitions

where this Court in disposal of such matters directed to consider the

case of the petitioner involved therein in the light of the Circular of

the Government dated 30.9.1994. Sri Sharma, learned counsel for

the Corporation referring to the provisions at Rules-5, 6, 7 & 16 of

the Orissa Service of Engineers Rules, 1941 substituted by Rule,

2012 attempted to demonstrate the provision involving recruitment,

manner of recruitment, manner of promotion in percentage, filling of

vacancies through different channels and the criteria of promotion

involving the employees in the Establishment of the Corporation.
                                    13



Similarly even though not disputed with regard to the directions and

observations of the Hon'ble Supreme Court but however taking this

Court to the observation of the Hon'ble Supreme Court in

paragraphs-53, 57 & 58 through the decision in (2018) I SCC 468

the 1st judgment also involving the Corporation Sri Sharma

attempted to submit that the petitioner having not registered in time,

i.e. before 15.1.2018 for appearing in the 1st test to be conducted in

the joint venture of AICTE and UGC in the month of May-June,

2018, the Corporation remain justified in reverting the petitioner,

vide Annexure-1. Sri Sharma, learned counsel for the Corporation

further taking this Court to the document at Annexure-5 attempted

to submit that the said document cannot be simply establishing that

the petitioner had applied for registration to appear in the first test in

terms of the direction of the Hon'ble Supreme Court before 15.1.2018

and thus opposed the claim of the petitioner, rather attempted to

justify the impugned order at Annexure-1.

5.                 It is at this stage of the matter, Sri Mishra, learned

senior counsel for the petitioner controverting the submissions of Sri

Sharma, learned counsel for the Corporation and taking this Court

to the plea of the petitioner in paragraph-17 of the brief also reading

through the document at Annexure-5 and further taking this Court

to the grant of passing certificate in the second test conducted by the

AICTE and UGC through rejoinder strongly objected to the claim of
                                        14



the   Corporation.     Sri   Mishra,    learned   senior   counsel   further

submitted that unless the petitioner would have registered prior to

15.1.2018, there was no occasion on the part of the AICTE and UGC

allowing the petitioner to appear in the second test conducted under

the direction of the Hon'ble Supreme Court in the decision referred to

hereinabove. Further, taking to the direction of the Hon'ble Supreme

Court in (2018) I SCC 468 particularly through paragraph 66.6 Sri

Mishra, learned senior counsel submitted that once the petitioner

passed in the test, there is validation of degree involving the

petitioner, all benefits accrued to him at the time of keeping the

degree suspended and withdrawn, should have been simply restored

and there is no other go.

6.                   Taking into consideration the contentions and rival

contentions of the respective counsel, this Court finds, for the

observations of the Hon'ble Supreme Court giving a sympathetic

consideration to the Degree Holders through JRM Vidyapitha

(Deemed University) to at least qualify in two tests to be conducted

under the guidance of AICT & UGC to validate their Degrees through

1st   judgment   vide    (2018)    I   SCC   468.    Questions   arise   for

consideration here are as under:-

                     I) If the petitioner's case covers the direction of the

Hon'ble Supreme Court ?
                                   15



                   II) If the petitioner passed the second test, he will

be entitled to what relief?



7.           With the aforesaid background involving the claim of the

parties this Court now proceeds to assemble the factual background

and the issues required to be adjudicated taking into account the

prayer involved in the Writ Petition. From the factual narration/

pleadings taken note hereinabove, it is noticed that petitioner

initially joined as Jr. Engineer in the feeder cadre being a diploma

holder in Civil Engineering. While working as such, petitioner got

degree in Civil Engineering from the so called Institution, JRN

Vidyapitha (Deemed University) in the year 2009 also being

registered in between 2001 to 2005. In the meantime there came

some development, where Agricultural Graduate Engineers who

initially joined as Jr. Engineers and subsequently upgraded as Asst.

Engineer in-charge and Ad.hoc Asst. Engineer claimed their regular

absorption as Asst. Engineer in filing O.J.C. No.13251 of 2001. In

disposal of the said Writ Petition on 14.12.2009 a Divisional Bench

of this Court taking note of the letter of the Government dated

30.09.1994 directed that the Odisha Lift Irrigation Corporation Ltd.

shall de novo consider the cases of the Graduate Engineers that is

the case of the petitioner and the O.Ps.4 to 9 therein who were

Diploma Holder/ Jr. Engineers in the light of the Government of
                                   16



Odisha communication dated 30.09.1994 by undertaking such

exercise within four months. After the above development it appears,

there are several similar Writ Petitions moved to this Court by

Graduate Civil Engineers, Electrical Engineers etc. in several Writ

Petitions and that of petitioner in Writ Petition No.563 of 2010 and

all these Writ Petitions were disposed of again by a Division Bench of

this Court with common order / direction to the Corporation to

consider the case of the petitioners involved in the light of the

Government of Odisha communication dated 30.09.1994, which is,

however, after recording the statement made by the learned counsel

for the Corporation.



8.          It is, at this stage of the matter, the Odisha Lift Irrigation

Corporation Ltd. chose to file review application in this Court

involving the bunch of Writ Petitions indicated hereinabove, which

also includes review application involving the Writ Petition of the

petitioner herein. All these Review Petitions were disposed of by

another Division Bench and on retirement of the Principal Judge

involved in disposal of the batch of the Writ Petitions, ultimately all

the review petitions were dismissed by its order dated 15.03.2012. In

the meantime, for the contempt applications being moved, the

Odisha Lift Irrigation Corporation Ltd. implemented the direction of

this Court in disposal of the batch of Writ Petitions including that of
                                   17



the present petitioner and communicated their decisions dated

16.05.2012 vide Annexure-2 intimating the persons named therein

who all were working then as Jr. Engineer (Civil) and In-charge Asst.

Engineer (Civil) under the Odisha Lift Irrigation Corporation Ltd. and

thereby appointing all of them as Asst. Engineer (Civil) on ad.hoc

basis, therein also indicating that such appointment, however, is

subject to the final outcome in the Special Leave Petition(s) indicated

therein pending at that point of time before the Hon'ble Apex Court.



9.          It is needless to mention here that the Special Leave

Petition(s) indicated therein are arising out of disposal of batch of

Writ Petitions on selfsame issue by this Court and also involving

consequential rejection of the review petition including that of the

petitioner's Writ Petition and review petition, by the Corporation.

Annexure-2 order appears to be an attempt by the Corporation to

circumvent the difficulty to be faced involving the Contempt

applications against the Odisha Lift Irrigation Corporation Ltd.

pending therein. In the meantime the SLP(C) Nos.19807-08 of 2012,

No.19829 of 2012, 19830-31 of 2012, No.19814-15 of 2012 were

entertained by the Hon'ble Apex Court as appears confining to the

issues regarding the validity of the degrees obtained by the persons

involved there through the deemed University, on the plea that the

said degrees have no approval of AICTE-the competent authority. The
                                        18



SLP(C)s were converted as Civil Appeals and consequently were

taken up for final hearing on 3.11.2017 and were all disposed of by

the judgment of the Hon'ble Apex Court vide 2018(I)SCC 498. In

deciding the matter ultimately the Hon'ble Apex Court through

paragraph nos.57, 58, 66.4, 66.6 finally giving a sympathetical

approach to the case of the petitioners involved therein as onetime

measure gave specific directions in the above paragraphs. For the

matter of conveniences the decision of the Hon'ble Apex Court in

paragraph nos.3, 57, 58, 66.2, 66.4 and 66.6 are quoted herein

below:

               "3. The Directorate of Lift Irrigation in the Government of
         Odisha was converted into Orissa Lift Irrigation Corpn. Ltd.
         (hereinafter referred to as "OLIC"). The service conditions of
         Engineers including Junior Engineers which is the base cadre in the
         Engineering Wing of OLIC are governed by the Orissa Service of
         Engineers' Rules, 1941 ("the 1941 Rules", for short) as amended from
         time to time. Junior Engineers form the feeder cadre for promotion to
         the next level, namely, that of Assistant Engineers. Respondent 1 [ In

the matter arising out of SLPs (C) Nos. 19807-808 of 2012.] , Rabi Sankar Patro, a diploma-holder in Electrical Engineering, joined OLIC as Junior Engineer (Electrical) and while in service, he acquired BTech (Civil) Degree from a deemed to be University, namely, JRN Rajasthan Vidyapeeth University, Udaipur, through distance education in the year 2009 and thereafter filed Writ Petition No. 3848 of 2010 in the High Court of Orissa. According to him, he being an in-service graduate Engineer was entitled to be promoted as Assistant Engineer. The said writ petition was allowed [Rabi Sankar Patro v. State, WP (C) No. 3848 of 2010, decided on 26-2-2010 (Ori)] without issuing notice to the respondents, placing reliance on an earlier order dated 14-12-2009 passed by the High Court in Bharat Chandra Rout v. State [Bharat Chandra Rout v. State, OJC No. 13251 of 2001, order dated 14-12-2009 (Ori)] by which OLIC was directed to consider the case of the candidates concerned as in-service graduate Engineers. OLIC being aggrieved, filed Review Petition No. 58 of 2012 which was dismissed by the High Court on 15-3-2012 [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, Review Petition No. 58 of 2012, order dated 15-3-2012 (Ori)] along with certain similar review petitions. The submissions recorded in support of the review petitions in the order of the High Court were as under:

"The argument advanced by Mr Ashok Mohanty, learned Senior Counsel for the review petitioners that the opposite parties-employees have acquired degree qualification of distance/correspondence education course from JRN Rajasthan Vidyapeeth which is not recognised by AICTE. Therefore, they are not qualified.... The learned Senior Counsel Mr Mohanty placed much reliance upon the letter issued by AICTE on 6-10-2010 wherein AICTE has categorically stated as under:

'It has been the policy of AICTE, not to recognise the qualifications acquired through distance education mode at diploma, bachelors and master's level in the fields of Engineering Technology including Architecture, Town Planning, Pharmacy, Hotel Management & Catering Technology, Applied Arts & Crafts and Post Graduate Diploma in Management (PGDM). AICTE only recognises MBA and MCA programme through distance mode."

57. Having found the entire exercise of grant of ex post facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex post facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of courses leading to award of degrees in Engineering. However, since the 2004 UGC Guidelines themselves had given liberty to the deemed to be universities concerned to apply for ex post facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 2001-2005 is protected. Though we cannot wish away the fact that the deemed to be universities concerned flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the overbearing interest of the students concerned persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of the said ex post facto approval. However, the fact remains that the facilities available at the study centres concerned were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the students concerned. We, therefore, deem it appropriate to grant some chance to the students concerned to have their ability tested by authorities competent in that behalf. We, therefore, direct that all the degrees in Engineering granted to students who were enrolled during the academic years 2001 to 2005 shall stand suspended till they pass such examination under the joint supervision of AICTE-UGC in the manner indicated hereinafter. Further, every single advantage on the basis of that degree shall also stand suspended.

58.AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test(s) both in written examination as well as in practicals for the students concerned admitted during the academic sessions 2001-2005 covering all the subjects concerned. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in

that behalf shall be conducted in the National Institutes of Technology in the respective States wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during May-June 2018 or on such dates as AICTE may determine. Not more than two chances be given to the students concerned and if they do not pass the test(s) their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test(s), the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the deemed to be university concerned within a month of the exercise of such option. The students be given time till 15-1-2018 to exercise such option. The entire expenditure for conducting the test(s) in respect of students who wish to undergo test(s) shall be recovered from the deemed to be universities concerned by 31-3-2018. If they clear the test(s) within the stipulated time, all the advantages or benefits shall be restored to the candidates concerned. We make it clear at the cost of repetition that if the candidates concerned do not clear the test(s) within the time stipulated or choose not to appear at the test(s), their degrees in Engineering through distance education shall stand recalled and cancelled. It goes without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however, any monetary benefits or advantages in that behalf shall not be recovered from them.

66.2. Insofar as candidates enrolled during the academic sessions 2001-2005, in the present case the ex post facto approvals granted by UGC and their authorities concerned are set aside. 66.4.AICTE shall devise the modalities to conduct an appropriate test(s) as indicated in para 58 above. The option be given to the students concerned whose degrees stand suspended by 15-1-2018 to appear at the test(s) to be conducted in accordance with the directions in para 58 above. Students be given not more than two chances to clear test(s) and if they do not successfully clear the test(s) within the stipulated time, their degrees shall stand cancelled and all the advantages shall stand withdrawn as stated in paras 57 and 58 above. The entire expenditure for conducting the test(s) shall be recovered from the deemed to be universities concerned by 31-3-2018. 66.6. If the students clear the test(s) within the stipulated time, all the advantages/benefits shall be restored to them and their degrees will stand revived fully."

10. Adverting to the claim of petitioner based on 1st order the

judgment reported in (2018) II SCC 298, it appears, there was filing

of several clarificatory applications as well as attempt for

modification of the direction of the Hon'ble Apex Court in its 1st

judgment dated 3.11.2017, at the instance of the persons holding

Diploma Engineering also enrolled themselves in 2005, in courses

leading to award of such degrees offered by the deemed to be

University in question through distance learning mode and after

obtaining degrees being awarded by the deemed University the

applicants involving the Miscellaneous Applications underwent

independent selection undertaken by the UPSC and entered certain

services as direct recruits and were at that point of time either been

engaged in the same services or have advanced in career on the basis

of such selection and some applications also include candidates who

have even obtained masters degrees on the basis of such Graduate

degree by then.

All the miscellaneous applications were taken up and decided

in one go by the Hon'ble Apex Court and again by the order of the

Hon'ble Apex Court in 2018(II)SCC 298 and in paragraph nos.25,

26, 26.1, 26.2 & 26.3 therein the Hon'ble Apex Court finding some

force in the submission of the respective counsel that for the

observation in the original judgment petitioners are likely to lose

their jobs, even if, they successfully pass the test, there will be

difficulty in restoration of their jobs and position. Here the Hon'ble

Apex Court as onetime relaxation permitted the candidates, who

were enrolled in the academic years 2001-05, to appear in the test to

be conducted by the AICTE also with some further directions therein.

For better appreciation this Court likes to take note of direction in

paragraph nos.25, 26, 26.1, 26.2 & 26.3, which is reflected herein

below:

"25. We now turn to the general submission advanced by all the learned counsel that the candidates after securing the degrees in Engineering through distance education mode, have advanced in career and that their ability was tested at various levels and as such requirement of passing the examination in terms of the judgment be dispensed with in their case. We cannot make any such exception. The infirmity in their degrees is basic and fundamental and cannot be wished away. At the same time, we find some force in their submission that if the suspension of their degrees and all advantages were to apply as indicated in the judgment, the candidates concerned may lose their jobs and even if they were to successfully pass the test, restoration of their jobs and present position would pose some difficulty.

26. We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:

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.

26.2. This facility is given as 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. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall stand suspended and withdrawn. At the cost of repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt.

26.3. We direct AICTE to conduct the test in May-June 2018 and declare the result well in time, in terms of our directions in the judgment and this order. AICTE shall however extend the time to exercise the option to appear at the test suitably."

It is needless to mention here that the miscellaneous

applications were moved by a different class of people and the 1st

order indicated herein involves different class of people. For deciding

a case involving altogether different class of people, further for grant

of more chances to the Engineers involving the judgment vide (2018)

I SCC 468 pronounced on 3.11.2018, the order of the Hon'ble Apex

Court in (2018) II SCC 298 taken note hereinabove has no

application to the case of petitioner involved herein. This Court has

also examined the observation of the Hon'ble Apex Court in (2019) 8

SCC 280 and finds, observation is in nature of clarification involving

some action by the State of Punjab & Haryana and this decision has

also nothing to do with the case of the petitioner.

11. It is, after disposal of the first batch of the Civil Appeals

by the judgment vide (2018) I SCC 468 on 3.11.2017 and the

miscellaneous applications being disposed of in the second judgment

vide (2018) II SCC 298, while the petitioner was waiting for the first

examination to be taking place in May & June, 2018 as per the time

fixed by the Hon'ble Apex Court after registering him on 15.01.2018,

the Opposite party-Odisha Lift Irrigation Corporation Ltd. by letter

dated 22.03.2018 vide Annexure-1 communicated their decision to a

group of people including the petitioner whose name find place at

Sl.No.2 therein, regarding reverting them back from the post of

ad.hoc Asst. Engineers to the post of Jr. Engineer.

12. This Court here takes note of submission of Mr. Mishra,

learned Senior Advocate for the petitioner that through Annexure-5 it

becomes clear that petitioner had already registered himself for the

purpose of appearing in the test to be conducted by the AICTE &

UGC under the direction of the Supreme Court in the first judgment

vide 2018 (I) SCC 498.

Looking to the challenge of the Odisha Lift Irrigation

Corporation that the petitioner did not register him by 15.01.2018

and that he did not clear his position on appearance in the first test

resulting the passing of the impugned order at Annexure-1, this

Court here apart from the statement of Mr. Mishra, learned Senior

Advocate also takes into account the plea of the petitioner in the Writ

Petition in paragraph 17 :

"That, it is respectfully submitted that the petitioner in response to the aforesaid judgment dtd.3.11.2017 and modified order dtd.22.1.2018 has filled up his form and registered himself to appear in the Examination to be held in the month of May-June, 2018 on online basis vide Candidate ID No.20180120084614 (Satyanarayan Rana) the time prescribed by the AICTE"

13. This Court here records the statement made by Mr.

Mishra, learned Senior Advocate for the petitioner that the petitioner

involved herein though filled up the form and register himself by the

cut-off date fixed by the Hon'ble Apex Court through online

candidate I.D 20180120084614, but the petitioner did not appear in

the first test conducted by the AICTE & UGC, but, however, appeared

in the second test being permitted by the Hon'ble Apex Court and in

the meanwhile petitioner has also been provided with a certificate of

passing out in the examination jointly conducted by the AICTE &

UGC to validate the degree granted by the JRN Vidyapitha (Deemed

University) as appearing at running page 76 of the brief and internal

page 24 of the rejoinder affidavit.

14. Looking to the counter averments and keeping in mind

the objection raised by Mr. Sharma, learned counsel for the Odisha

Lift Irrigation Corporation Ltd., this Court perusing the counter

affidavit at the instance of O.Ps.2, 3 & 4 finds, there is no objection

to the claim of the petitioner in establishing that petitioner had

already applied and registered himself to appear in the first test.

Entire reading of the counter affidavit, this Court nowhere finds any

foundation on the allegation at the instance of Odisha Lift Irrigation

Corporation Ltd. In absence of which, this Court outrightly rejects

the contentions of the Odisha Lift Irrigation Corporation that the

petitioner did not apply and register himself by 15.01.2018 in terms

of the direction of the Hon'ble apex Court. It is, at this stage of the

matter, this Court while finding that petitioner had already applied

for registration by 15.01.2018, observes, unless he has applied by

15.01.2018, there was no scope on the part of the AICTE & UGC to

allow the petitioner to sit in the second test even. From the

discussions in paragraph no.13 (supra) it also becomes clear that

petitioner had in the meantime also cleared in the 2nd test thereby

validating his degree involved in terms of direction of the Hon'ble

Apex Court vide paragraph nos.57, 58 & 66.6 involving (2018) I SCC

468. It is, at this stage, this Court answering the issue no.1 framed

by this Court, holds, petitioner's case is squarely covered by the

observation of the Hon'ble Apex Court in (2018) I SCC 468 involved

herein.

15. Now coming to deal with issue no.2 vis-à-vis the

impugned order at Annexure-1, this Court on reiteration observe,

looking to the observation of the Hon'ble Apex Court in paragraph

no.57 of (2018) I SCC 468, the Hon'ble Apex Court by this judgment

dated 3.11.2017 through above paragraph clearly observed that till

such candidates pass such examination to be jointly conducted by

the AICTE & UGC, the degrees in Engineering granted to the

students enrolled in between 2001 to 2005 shall stand suspended

and further every single advantage on the basis of such degree shall

also stand withdrawn. It is, in this view of the matter and for the

degrees including that of petitioner being suspended since

3.11.2017, there arose situation in suspending the degree involving

the petitioner besides also withdrawing the benefits conferred on him

by the Corporation on the basis of such degree till petitioner

establishes validation of his degree certificate. This Court, therefore,

finds, there is no infirmity in the order at Annexure-1 passed by the

Corporation herein.

16. With the above background, next question arises herein, since

the petitioner passed through the 2nd test which is also as per the

sympathetic concern shown by the Hon'ble Apex Court in the above

judgment, thereby petitioner validated his degree appearing in

second test conducted by the AICTE and UGC in between December,

16 to 19 of 2018, this Court here taking note of the direction of the

Hon'ble Apex Court in paragraph no.66.6 involving (2018) I SCC

468, the Corporation was duty bound to restore the position of the

petitioner to the position of Asst. Engineer (Civil) along with all such

benefits he was enjoying at the time of passing of withdrawal of all

such benefits vide order at Annexure-1.

17. This Court, therefore, here while answering the issue

no.II in favor of the petitioner as flowing in terms of paragraph

no.66.6 involving (2018) I SCC 468 directs, while restoring the

position of the petitioner as on 22.03.2018, release the benefits the

petitioner was entitled to as on passing of order at Annexure-1 and

also consider the case of petitioner for benefits, if any, to have been

accrued to him in the meantime, by completing the entire exercise

within a period of eight weeks from the date of communication of this

judgment.

18. The Writ Petition thus succeeds, but in the circumstance

however, there is no order as to costs.

...............................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 25th day of January, 2021/MKR, A.R.-cum-Sr.Secy/AKJ,Sr.Steno.