Orissa High Court
Santanu Kumar Nayak And Another vs State Of Odisha And Others on 12 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.4766 of 2019
An application under Article 226 and 227 of the Constitution of
India.
Santanu Kumar Nayak and another .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : M/s. B.S. Tripathy, A. Tripathy
and A. Sahoo
For Opp. Parties : Mr. S. Das,
learned Addl. Govt. Advocate
Mr. A.K. Nath, Advocate for
Opposite Party No.3
Mr. A.R. Mishra, Advocate for
Opposite Party No.4
W.P.(C) No.12376 of 2016
Jyoti Prakash Giri .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
For Petitioner : M/s. B.S. Tripathy, A. Tripathy
and A. Sahoo
For Opp. Parties : Mr. S. Das,
learned Addl. Govt. Advocate
Mr. A.K. Nath, Advocate for
Opposite Party No.3
// 2 //
Mr. A.R. Mishra, Advocate for
Opposite Party No.4
W.P.(C) No.4770 of 2019
Kshirasindhu Sahoo .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
For Petitioner : M/s. B.S. Tripathy, A. Tripathy
and A. Sahoo
For Opp. Parties : Mr. S. Das,
learned Addl. Govt. Advocate
Mr. A.K. Nath, Advocate for
Opposite Party No.3
Mr. A.R. Mishra, Advocate for
Opposite Party No.4
W.P.(C) No.9108 of 2019
Jyoti Prakash Giri .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
For Petitioner : M/s. B.S. Tripathy, A. Tripathy
and A. Sahoo
For Opp. Parties : Mr. S. Das,
learned Addl. Govt. Advocate
// 3 //
Mr. A.K. Nath, Advocate for
Opposite Party No.3
Mr. A.R. Mishra, Advocate for
Opposite Party No.4
W.P.(C) No.9110 of 2019
Prabhat Kumar Patro .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
For Petitioner : M/s. B.S. Tripathy, A. Tripathy
and A. Sahoo
For Opp. Parties : Mr. S. Das,
learned Addl. Govt. Advocate
Mr. A.K. Nath, Advocate for
Opposite Party No.3
Mr. A.R. Mishra, Advocate for
Opposite Party No.4
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 19.04.2023 | Date of Judgment : 12.05.2023
A.K. Mohapatra, J.
1. The above noted writ petitions involve in common question of law
and the nature of relief sought for are almost identical. Moreover, the
// 4 //
facts involved in all above noted writ applications were clubbed together
and were taken up for hearing simultaneously. After hearing learned
counsels appearing for the respective parties, the above noted writ
applications are being disposed of by the following common judgment.
2. Since the above noted writ applications involved a similar set of
facts and the relief sought for by the petitioners in each of the above
noted writ applications are similar in nature, to avoid repetition of facts
and for the sake of brevity, the facts involved in writ application bearing
W.P.(C) No.4766 of 2019 are being discussed and analyzed herein below
to decide the issue involved in the above noted writ applications.
3. W.P.(C) No.4766 of 2019 has been filed by one Santanu Kumar
Nayak and Munmun Pattanayak with a prayer for quashing of the
impugned termination order dated 13.02.2019 issued by the Opposite
Party No.2 under Annexure-6 series to the writ application and further to
direct the Opposite Parties authorities to reinstated the petitioners in
service with all consequential service and monetary benefits within a
stipulated period of time.
4. The factual background of the present writ petition culled out from
the writ application itself, in gist, is that pursuant to the Advertisement
No.01 of 2015 for recruitment to the posts of Principal and Teaching
// 5 //
posts in newly set up Model Schools (Odisha Adarsha Vidyalaya) in the
State of Odisha issued by Ed Cil(India) Ltd. on behalf of Odisha Adarsha
Vidyalaya Sangathan (in short the "OVAS) under the School and Mass
Education Department, Government of Odisha. The petitioners submitted
their applications for appointment to the post of Music Teachers. Since
the petitioners had acquired qualification from Akhila Bharatiya
Gandharba Mahavidyalaya Mandal, Bombay (in short "ABGMM,
Bombay"), their applications were accepted and they were allowed to
participate in the recruitment test. After coming out successfully in the
recruitment process vide Order No.625/OAVS dated 11.04.2016, the
petitioners were provisionally appointed as Music Teachers against the
existing vacancies in the pay band of Rs.9,300/- - 34,800/- + Grade Pay
of Rs.4,600/- with usual D.A. and HRA as admissible w.e.f. the date of
actual joining in the post.
5. Initially, the period of probation was for two years from the date
of joining with further stipulation that the appointment is purely
provisional during the probation which can be terminated at any time
without assigning any reason thereof. Furthermore, their appointment
were subject to Order No.5 dated 10.02.2016 of this Court passed in
Misc. Case No.21386 of 2015 arising out of W.P.(C) No.23372 of 2015
filed by Arati Acharya and five others vrs. State of Odisha and others.
// 6 //
The said appointment order dated 11.04.2016 under Annexure-3 reveals
that the name of the petitioner no.1 appears against the Sl. No.1 and the
petitioner No.2 appears against the Sl. No.34 and they were posted at
OAV, Junagarh and OAV, Karapalli, Rangeilunda respectively.
6. Prior to the issuance of the appointment letter dated 11.04.2016
under Annexure-3, the petitioners were called upon to furnish their
original certificates and other relevant documents for verification on
16.01.2016. After verifying the certificates, the petitioners were issued
with appointment letter under Annexure-3. However, the said
appointment letter dated 11.04.2016 under Annexure-3 further reveals
that said appointment is subject to the petitioners submitting the original
documents to the Principal concerned at the time of their joining for
verification. Accordingly, said certificates were produced before the
Principal concerned of the respective OAVs and upon such verification
by the Principal, the petitioners were allowed to join in duty.
7. Since the date of their appointment, and pursuant to acceptance of
their joining report, the petitioners were discharging their duties as Music
Teachers to the satisfaction of OAVs authorities as well as the students.
The petitioners were also allowed to continue in service after completion
of their probation period of two years. Long after the completion of
probation period, the petitioners received letter dated 16.01.2019 from
// 7 //
the State Project Director, Odisha Adarsha Vidyalaya Sangathan wherein
it has been stated that they were appointed on probation on being selected
provisionally as Music Teachers on the basis of the declaration in the
online application form and the certificates/documents produced by them
in support of their educational qualification.
8. The said letter further reveals that the certificates and documents
submitted by the petitioners were decided to be verified again by the
authorities and accordingly, the petitioners were asked to report at the
office of Odisha Primary Education Programme Authority (in short
"OPEPA"), Unit-5, Bhubaneswar 24.01.2019 at 10.00 A.M. with all
original certificates/documents for verification and personal hearing.
Accordingly, the petitioners appeared before the OPEPA authority where
re-verification of certificates/documents was done on the date and time
fixed. Immediately, thereafter on 25.01.2029, the petitioners were issued
with a letter/relieve order by the Principals of respective OAVs.
9. After receiving the aforesaid relieve orders from the Principals of
the respective OAVs, the petitioners submitted their representations
before the State Project Director, OAV, Bhubanewsar on 28.01.2019. On
perusal of the representations submitted by both the petitioners, it appears
that the petitioners were not provided with ample opportunity to give
proper explanation with regard to the educational qualification certificate
// 8 //
and accordingly they were compelled to file the present writ applications
furnishing additional grounds and clarifying the recognition granted by
UGC Akhil Bharatiya Gandharv Mandal, Mumbai along with their writ
applications. They have also submitted relevant additional
documents/certificates in support of their Music degree qualification,
which was submitted during verification of documents prior to their
appointment before the authorities. In the representation, the petitioners
also referred to the letter of the UGC dated 18.03.1980 and the
qualification given therein by the UGC, Pracheen Kala Kendra,
Chandigarh and the judgment of the Hon'ble Supreme Court in Civil
Appeal No.6098 of 1997 dated 12.04.2004 with regard to Sangeet
Visharad Certificate as a Music Degree.
10. The petitioners have also referred to in their representations the
documents available in official website of the Parliament of India dated
25.10.2010 regarding eligibility of degree holders from Pracheen Kala
Kendra, Chandigarh and Akhil Bharatiya Gandharv Mandal, Mumbai as
suitable for the Music Teachers Navadoya and Kendriya Vidyalaya
within the territory of India. On further perusal of the representation
under Annexure-5, it appears that the petitioners had also submitted ten
additional documents in support of their validity of degree. At this
juncture, it would be relevant to mention here that both the petitioners
// 9 //
took identical grounds in their representation and submitted almost
identical documents in support of the validity of the Music Degree
acquired by them from Akhil Bharatiya Gandharv Mandal, Mumbai (in
short the "ABGMM").
11. While the matter stood thus, the State Project Director, OAV,
Bhubaneswar vide office order dated 13.02.2019 under Annexure-6
cancelled the appointment of the petitioners as Music Teachers. On
perusal of the said office order under Annxure-6 series, it was observed
by this Court that the State Project Director has indicated as follows:-
(i) The candidate has passed Sangeet Visarad from
Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay which is a diploma and not B.
Music degree and he could not produce any
document in support of equivalency with B. Music
degree.
(ii) Letter No.48695 dated 31.08.2001 of Utkal
University, Vanivihar was not a letter of equivalence
with B. Music degree.
(iii) The interpretation of the applicant that the letter
No.48695 dated 31.08.2001 of Utkal University,
// 10 //
Vanivihar was valid till withdrawal by Utkal
University during 2017 is not at all correct because
the said letter was meant for equivalence of
M.Music degree of Akhila Bharatiya
Gandharba Mahavidyalaya Mandal, Bombay.
Moreover, the said letter was not meant for
declaration equivalence of the degree of Akhila
Bharatiya Gandharba Mahavidyalaya Mandal,
Bombay with B. Music degree issued by the
University of Odisha as per advertisement.
(iv) In course of hearing on 28.01.2019, the candidate
also could not produce any notification in support of
equivalence of Sangeet Visarad from Akhila
Bharatiya Gandharba Mahavidyalaya Mandal,
Bombay with 'B. Music' degree issued by any
University of Odisha.
(v) In fact, after establishment of Utkal University of
Culture, Bhubaneswar, the issue of equivalency in
respect of 'B. Music' couses comes under the
jurisdiction of the said university and the said
university has rightly issued letter No.2327 dated
// 11 //
22.06.2015 wherein it is clarified that the degrees
awarded by Prachin Kala Kendra, Chandigarh and
Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay are not recognized by Utkal
University of Culture, Bhubaneswar.
(vi) The Hono'ble High Court in their order dated
08.08.2017 in W.P.(C) No.9197 of 2013 filed by
Abanti Rath vrs. State of Odisha has also agreed to
the clarification issued by Tourism and Culture,
Department vide letter No.2491(3)) dated
13.03.2013 and dismissed the claim of the applicant.
(vii) The applicant has suppressed all those issues during
documents verification in order to get undue favour.
With he aforesaid observations by the State Project
Director, OAV, Bhubaneswar, he has cancelled the
selection of the petitioners as 'Music Teacher' as
well as appointment letter issued in favour of the
petitioner on 11.04.2013 and accordingly, the
services of the petitioners were terminated with
immediate effect. Being aggrieved by the said order,
// 12 //
the petitioners have knocked the door of this Court
by filing the present writ applications.
12. Heard Mr. B.S. Tripathy, learned counsel appearing for the
petitioners, Mr. S. Das, leaned Additional Government Advocate, Mr.
A.R. Mishra, learned counsel appearing for the Opposite Party No.4 and
Mr. A. K. Nath, learned counsel appearing for the Opposite Party No.3.
Perused the pleadings of the respective parties as well as materials placed
before this Court for consideration.
13. Mr. B.S. Tripathy, learned counsel appearing for the petitioners by
drawing attention of this Court to the advertisement under Annxure-1
submitted that the said advertisement stipulates the following eligibility
criteria so far as the educational qualification is concerned.
"3(3) Candidates having Master Degree/Bachelor
Degree in Art/Commerce/Science with Bachelor
Degree in Education from any University of the
State.
(4) Regarding Universities/Institutions of outside
State, the candidates shall only be eligible for
appointment after verification of genuineness of
their educational/training qualification from
// 13 //
concerned University/Institutions from which they
have obtained the degree. Such outside
University/Institution candidates shall have to
produce the authenticated proof of equivalency and
NCTE recognition in support their qualification at
the time of verification falling which they will not
be eligible in the selection process.
5. QUALIFICATION & EXPERIENCE FOR
THE POST OF PRINCIPAL, TFT AND OTHER
TEACHING POSTS.
(3) Music Teacher:-
i) Senior Secondary School Certificate or
Intermediate and Bachelor Degree in Music from a
recognized University.
ii) Competence to teach through English/Odisha
medium:
Desirable: Knowledge of computer application."
14. Learned counsel for the petitioners in the context of petitioners'
qualification submitted that the petitioners have obtained qualification
from Akhila Bharatiya Gandharba Mahavidyalaya Mandal, Bombay.
After due verification of their certificates, they were appointed on
// 14 //
11.04.2016. Further the petitioners were initially appointed on probation
for a period of two years. he further contended that while the petitioners
were discharging their duties successfully beyond initial period of
probation against the regular vacant post of Music Teacher, their
appointments have been illegally cancelled and their services have been
illegally terminated by the authorities vide order dated 13.02.2019. Such
termination is probably on the ground that the petitioners could not
produce any notification in support of equivalence with "B. Music"
degree as stipulated in the advertisement and the degree awarded by
Akhila Bharatiya Gandharba Mahavidyalaya Mandal, Bombay and
Prachin Kala Kendra, Chandigarh are not recognized by Utkal University
Culture, Bhubaneswar and that this Hon'ble Court dismissed the similar
claim vide order dated 08.08.2017 in W.P.(C) No.9197 of 2013.
15. While assailing the impugned termination letter under Annexure-6
dated 13.02.2019, learned counsel for the petitioners drawing attention of
this Court ro order dated 28.02.2019 passed in the present writ
application by a coordinate Bench of this Court wherein it has been
observed by the coordinate Bench, who happens to be the author of order
dated 08.08.2017 passed in W.P.(C) No.9197 of 2013, submitted that t
has been clarified by the very same co-ordinate Bench that the order
// 15 //
dated 08.08.2017 passed in the case of Abanti Rath vrs. State of Odisha
has been passed considering a different aspect altogether.
16. Next, learned counsel for the petitioners submitted that Para-3(3),
(4) and Para-5(3) of the advertisement under Annexure-1 are to be read
conjointly and harmoniously. Further, Para-3(4) extensively deals with
candidates having Educational/Training qualification from outside
University/Institutions. In the present case, admittedly, the petitioners
have obtained their qualification from outside the State Institution like
Akhila Bharatiya Gandharba Mahavidyalaya Mandal, Bombay and
Prachin Kala Kendra, Chandigarh. Referring to the certificates annexed
to the writ application, learned counsel for the petitioners further
contended that the Opposite Party No.2 without referring to the
certificates, has terminated the service of all the petitioners. He further
contended that no opportunity whatsoever was provided to the petitioner
to explain their position. Therefore, such conduct of the Opposite Parties
grossly violates the principle of nature justice. As a result of which the
entire process in terminating the service of the petitioner is vitiated.
17. Learned counsel for the petitioners has also contended that it was
the individual case of the petitioners that the certificates which they have
obtained from outside institutions are Universities. Further, UGC has
expressly empowered the institution like Akhila Bharatiya Gandharba
// 16 //
Mahavidyalaya Mandal, Bombay to award certificates and diplomas.
Moreover, Utkal University vide letter dated 31.08.2001 under
Annexure-8 has categorically held that M.Music Degree of Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay is equivalent to
M.Music Degree and Diploma of Utkal University. He also referred to
the notification of Utkal University dated 25.08.2001 specifically
declaring that the Degree of Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay particularly the M.Music Degree issued by such
institution is equivalent to the M.Music Degree and Diploma of the Utkal
University, Odisha. Furthermore, recognition/equivalence granted by
Utkal University, Odisha continued up to 17.12.2017. On 17.12.2017 in a
meeting of the syndicate of the Utkal University presided by Vice-
Chancellor, Utkal University under Item No.4, a decision was taken to
withdraw the equivalency/recognition granted to the Akhila Bharatiya
Gandharba Mahavidyalaya Mandal, Bombay and Prachin Kala Kendra,
Chandigarh by withdrawing the letter dated 31.08.2001.
18. At this juncture, this Court would like to observe that on perusal of
the proceedings of the equivalence committee meeting held on
17.07.2017 under Annexure-9, this Court is utterly shocked by the
manner in which the entire issue was dealt with under Item No.4 of the
minutes of the proceedings while drawing the equivalent to
// 17 //
Diploma/Degree awarded by "Prachin Kala Kendra, Chandigarh".
However, they have mentioned that office order vide Letter No
AC/Equiy.SO A(Part)/48695/2001 dated 31.08.2001 is withdrawn. Copy
of the letter dated 31.08.2001, which has been filed along with writ
petitioner as Annexure-8 reveals that the said letter refers to grant of
equivalence of M.Music by Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay. Since the letter No and date is correct, this Court is
pursuaded to decide the issue assuming that Equivalence Committee has
withdrawn the equivalence of diploma/degree awarded by Prachin Kala
Kendra, Chandigarh and Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay w.e.f. 17.02.2017.
19. Similarly, the North Orissa University has also accepted the
certificate issued by Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay as equivalence of B.A., M.A. and Ph.D as Visharad,
Alankar and Sangeetacharya Diplomas. A copy of the letter 06.12.2001
issued by the Registrar, North Orissa University has been annexed to the
writ petition as Annexure-10. The said letter clearly indicates that North
Orissa University has granted equivalence of Diplomas of Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay at par with B.A.,
M.A. and Ph.D such as Visharad, Alankar and Sangeetacharya Diplomas
respectively. So far other universities in the country are concerned, it is
// 18 //
submitted by learned counsel for the petitioners that most of them have
accepted the diploma and degree awarded by Akhila Bharatiya
Gandharba Mahavidyalaya Mandal, Bombay and Prachin Kala Kendra,
Chandigarh and in that regard, learned counsel for the petitioners referred
to some of the letters granting equivalence to the diplomas of Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay by other
universities in the country. He also contended that Navodaya Vidyalay
Samiti which is a new group of institutions, managed by the Government
of India, has been accepting the degree and diplomas awarded by Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay and Prachin Kala
Kendra for appointment to the post of Music Teachers.
20. In course of argument, learned counsel for the petitioners also
referred to the case of Dr. Sangita Gosain, Former Principal, Utkal
Sangeet Natak Academy and submitted that she was also having
certificate of Degree and Diploma from Akhila Bharatiya Gandharba
Mahavidyalaya Mandal, Bombay and Prachin Kala Kendra, Chandigarh.
Learned counsel for the petitioners also contended that the Department
Of Cultural Affairs, Government of Odisha vide letter dated 23.03.1973
has recognized degree / diploma from Akhila Bharatiya Gandharba
Mahavidyalaya Mandal, Bombay and Prachin Kala Kendra, Chandigarh
prior to establishment of Utkal University of Culture in the year 1999.
// 19 //
The faculty members of Utkal Sangeet Mahavidyalaya were being
appointed by accepting the degrees in Music from different institutions
like Prachin Kala Kendra, Chandigarh, which was established in the year
1954.
21. In course of his argument, Mr. Tripathy, learned counsel for the
petitioners additionally referred to a report submitted by Justice S.C.
Agrawal (Retired Judge) Supreme Court of India, who was appointed by
Hon'ble Supreme Court of India as the Commissioner in respect of
matters referred to vide order dated 12.10.2001 in Civil Appeal No.6098
of 1997. Referring to the Page Nos.41 and 42 of the report, learned
counsel for the petitioners submitted that the Justice Agrawal in his
report accepted the degree of "Sangeet Praveen" and "Sangeet Bhasker"
equivalent to Post Graduate qualification in Music." In the present case,
both the petitioners are having a degree of "Sangeet Visarad."
Accordingly, learned counsel for the petitioners submitted that in view of
the report submitted by Justice S.C. Agrawal, the diploma acquired by
the petitioners be treated at par with B.Music degree. For better
appreciation the relevant paragraphs has been quoted herein below:-
"As regards the postgraduate qualification in Music,
it has been pointed out that there are two recognized
institutions, which award Degrees/Diplomas in
// 20 //
Music. One is 'Prayag Sangeet Samiti at Allahabad',
which awards the degree of "Sangeet Prabhakar"
and "Samgeet Praveen". Another institution is
'Prachina Kala Kendra, Chandigarh', which awards
diplomas in 'Sangeet Visharad' and 'Sangeet
Bhasker'. A number of Universities in the country
including the Bhagalpur University and Bihar
University in Bihar and a number of State
Governments have recognized the aforementioned
Degrees/Diplomas of these institutions. The Degrees
of 'Sangeet Praveen' and 'Sangeet Bhaskar' are
treated as equivalent to M.A. in Music, while
'Sangeet Prabhakar' and Sangeet Visharad' are
treated as equivalent to B.A. in Music. For the
purpose of considering the minimum qualification in
Music, I would proceed on the basis that the Degree
of 'Sangeet Praveen' and Diploma in 'Sangeet
Bhaskar' are equivalent to Post Graduate
qualification in Music and the Degree of 'Sangeet
Prabhakar' and Diploma in 'Sangeet Visharad' have
// 21 //
to be treated as equivalent to Graduate qualification
in Music."
22. It was further contended by learned counsel for the petitioner that
relying upon the said report the Hon'ble Apex Court passed judgment
dated 12.10.2004 in Civil Appeal No.6098 of 1997 i.e. State of Bihar
and others vrs. Bihar Rajya M.S.E.S.K.K.M and others : reported in
(2005) 9 SCC 129 accepting the report of the Commission of the enquiry
of Hon'ble Justice S.C. Agrawal (retired) and rejected all objections filed
against the said report.
23. Referring to the rejoinder affidavit dated 26.04.2019, learned
counsel for the petitioners also contended that the State Project Director
in his counter affidavit filed on 26.04.2016 in O.A. No.2619(C) of 2016
before learned Odisha Administrative Tribunal took a specific stand
which has been quoted herein below:-
"Accordingly, the Respondents No.6 and 8 produced
a copy of letter No.48695 dt.31.08.2001 of the Utkal
University in support of equivalence of their
qualification. Similarly, the Respondent No.7, 9 &
10 produced a copy of letter No.2850 dt.23.07.1973
of the Culture Department in support of equivalence
// 22 //
of their qualification. Copies of the letters
dt.31.08.2001 and 23.07.1973 are enclosed as
Annexure-A/3 and B/3. Accordingly, the
Respondents No.6 and 10 have been selected for the
post of Music Teacher in OAV on the strength of the
documents produced by them."
24. In reply to the argument advanced by learned Additional
Government Advocate with regard to suppression of materials facts and
information, learned counsel for the petitioners submitted that such
argument advanced by learned Additional Government Advocate is not
correct. He further submitted that admittedly Utkal University vide letter
under Annexure-8 recognized the certificate issued by the Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay as equivalent to
"M Music" degree and diploma of Utkal University on reciprocal basis.
Alternatively even assuming for the sake of argument that there is
suppression information, then the Opposite Parties have no authority to
terminate from the service of the petitioners by ignoring the principles of
natural justice and without providing an opportunity to the petitioners to
show cause.
25. Learned counsel for the petitioners further submitted that after
obtaining relevant information from the PIO, Utkal University, Vani
// 23 //
Vihar under right to information Act vide letter No.8182 dated
23.02.2022 which is enclosed herewith. A perusal of such reply vide
letter No.7520 dated 17.03.2022 of Section Officer, Academic Section, it
appears that the degree/diploma awarded by Prachin Kala Kendra,
Chandigarh was equivalent with that of Utkal University till 17.02.2017
as per decision of the Equivalence Committee held in the year 2017. The
same was brought into the record of this Court by filing a memo.
Accordingly, it was submitted that even Utkal University, Odisha does
not dispute the fact that equivalence granted by Equivalence Committee
of the University vide its letter dated 31.08.2001under Annexure-8 was
valid till the same was withdrawn by the University on 17.02.2017.
26. Therefore, it was also contended before this Court that the
petitioners having been selected pursuant to an advertisement in the year
2015 and they were appointed pursuant to an appointment letter dated
11.04.2016 under Annexure-3, which is much prior to the equivalence
was withdrawn by the Utkal University, Odisha, the equivalence granted
by the Utkal University by following the procedure is a valid
equivalence and the same cannot be disputed by anybody till the same
was withdrawn in the year 2016. Accordingly, he argued that the
Opposite Parties are bound to accept the certificates submitted by the
// 24 //
petitioners, which has been declared to be equivalent to the degree of
Utkal University, Odisha by a competent body of such university.
27. Additionally, learned counsel for the petitioner assailed the
impugned termination letter on the ground that no show-cause notice
was given to the petitioner indicating the specific grounds therein. He
further contended that the so-called opportunity of hearing granted to the
petitioners while verifying the certificate was not good enough and the
petitioners were not ready and prepared to meet such queries raised by
the authority in course of verification without any prior intimation.
Therefore, he submitted that the so-called opportunity of hearing on the
date of verification of certificates on 28.01.2019 is mere observance of
an empty formality and therefore such conduct of the authorities falls
short of the legal requirement of adherence to principle of natural justice.
In the said context, the learned counsel for the petitioners referred to the
judgment of the Hon'ble Supreme Court in the case of Binapani Dei vrs.
Stae of Orissa and others : reported in AIR 1967 SC 1429 and referred
to the following observations by the Hon'ble Supreme Court in
Binapani Dei vrs. State of Orissa and others, which is quoted herein
below:-
".....An order by the State to the prejudice of a
person in derogation of his vested rights may be
// 25 //
made only in accordance with the basic rules of
justice and fairplay. The deciding authority, it is
true, is not in the position of a Judge called upon to
decide an action between contesting parties, and
strict compliance with the forms of judicial
procedure may not be insisted upon. He is however
under a duty to give the person against whom an
enquiry is held an opportunity to set up his version
or defence and an opportunity to corroborate or to
controvert any evidence in the possession of the
authority which is sought to be relied upon to his
prejudice. For that purpose the person against whom
an enquiry is held must be informed of the case he is
called upon to meet, and the evidence in support
thereof. The rule that a party to whose prejudice an
order is intended to be passed is entitled to a hearing
applies to judicial tribunals and bodies of persons
invested with authority to adjudicate upon matters
involving civil consequences. It is one of the
fundamental rules of our constitution that every
citizen is protected against exercise of arbitrary
// 26 //
power by the State or its offices. Duty to act
judicially would therefore arise from the very nature
of the function intended to be perform; it need not
be shown to be super-added. If there is power to
decide and determine to the prejudice of a person,
duty to act judicially is implicit in the exercise of
such power. If the tails of justice be ignored and an
order to the prejudice of' a person is made, the order
is a nullity. That is a basic concept of the rule of law
and importance thereof transcends the significance
of a decision in any particular case."
28. Mr. Tripathy, learned counsel for the petitioner also referred to a
judgment in the case of Bhagabati Prasad and others vrs. Delhi State
Mineral Development : reported in AIR 1990 S.C. 371 and submitted
that initial minimum educational qualification prescribed for the posts is
undoubtedly a factor to be reckoned with, however, the same is to be
done at the initial entry into service. Once appointments were made and
the persons are allowed to discharging their duties for a considerable
time, it would be hard and harsh to deny them the confirmation in the
respective posts on the ground that they lack the prescribed educational
qualifications. In the said context, learned counsel for the petitioners
// 27 //
referred to the following relevant portion of the Para-6 of the judgment
quoted herein below:-
""6. ....... Practical experience would always aid
the person to effectively discharge the duties and is a
sure guide to assess the suitability. The initial
minimum educational qualification prescribed
for the different posts is undoubtedly a fact to be
reckoned with, but it is so at the time of the initial
entry into the service. Once the appointments
were made as daily rated workers and they were
allowed to work for a considerable length of time,
it would be hard and harsh to deny them the
confirmation in the respective posts on the
ground that they lack the prescribed educational
qualifications. In our view, three years'
experience, ignoring artificial break in service for
short period/periods created ny the respondent,
in the circumstances, would be sufficient for
confirmation."
29. Per contra, learned Additional Government Advocate representing
the State-Opposite Parties admitted the fact that to fill up the posts lying
// 28 //
vacant in OAVs in the State of Odisha an advertisement bearing No.01
of 2015 was issued by the State-Opposite Parties inviting applications
from the intending candidates to offer their candidature. Referring to the
clause-(3) of the advertisement, learned counsel for petitioner submitted
that in clause(4) under the heading 'important instruction' in clause-
(3), clear instructions were given to the candidates with regard to the
Universities/Institutions from outside the States and that such candidates
shall only be eligible for appointment after verification of genuineness of
their educational/training qualification from concerned
University/Institutions from which they have obtained the degree and
that such candidates shall have to produce the authenticated proof of
equivalency and NCTE recognition in support of their qualification at
the time of verification failing which they will not be eligible for the
selection process. Accordingly, it was submitted by leaned Additional
Government Advocate that it was within the knowledge of the
petitioners that their selection and appointment verification of their
certificates which fact is clearly indicated in the advertisement itself.
30. With regard to qualification and experience for the post of Music
Teacher, learned Additional Government Advocate referring to clause-
5(3) of the advertisement submitted that the intending candidates for
Music teacher must have Senior Secondary School Certificate or
// 29 //
Intermediate or Bachelor Degree in Music from a recognized University
and they must have competence to teach in English and Odia medium.
Referring to the above clause of the advertisement, learned Additional
Government Advocate submitted that the same are to be read conjointly
and on such conjoint reading, it I seen that the same very much provides
that the candidates must have acquire requisite qualification from
University/Institution from outside the State are required to produce
authenticated proof of equivalence in support of their qualification at the
time of verification of their documents failing which they will not be
eligible for such appointment. He further contended that so far as Music
Teacher is concerned, it was categorically provided that candidates must
have Bachelors degree in Music from a recognized university. Further in
respect of qualification of the petitioners, learned Additional
Government Advocate admitted that the petitioners have acquired
Sangeet Visarad qualification Akhila Bharatiya Gandharba
Mahavidyalaya Mandal, Bombay, which is an institution outside the
State of Odisha.
31. Next, learned Additional Government Advocate referring to the
documents under Annexure-A/2 to Annexure-C/2attached to the counter
affidavit, filed on behalf of the State, submitted that such documents
clearly reveals that Akhila Bharatiya Gandharba Mahavidyalaya Mandal,
// 30 //
Bombay is neither University within the scope of Section 2(f) U.G.C.
Act, 1956 nor the degree imparted by equivalent to the degree course
imparted by Utkal University/Utkal University Culture. He further
submitted that under Annexure-B/2 to the counter affidavit, the
Government of Odisha in the Department of Tourism have issued an
instruction to all the District Project Coordinator, Sarva Sikshya Abhijan
vide letter dated 15.03.2013 that Prachina Kala Kendra, Chandigarh and
Akhila Bharatiya Gandharba Mahavidyalaya Mandal, Bombay are not
universities within the purview of Section 2(f) of U.G.C. Act, 1956 as
clarified by U.G.C. Therefore, they do not come within the purview of
U.G.C. Further said letter having been issued by the Government in the
year 2013 i.e. much prior to the advertisement, it is accepted that the
same was within the knowledge of the petitioners and as such, the
petitioners are bound by such decision of the Government so long as
such decision is in force.
32. Similarly, it was also contended by learned Additional
Government Advocate that Utkal University of Culture vide letter dated
22.06.2015 addressed to the Regional Director, Regional Directorate,
O.A.V. Institution, Odisha Zone-1, Bhubaneswar has categorically
informed that the institutions which are not recognized by U.G.C. as per
Section 2(f) of the U.G.C. Act, 1956, therefore degrees awarded by them
// 31 //
are not considered equivalent to Graduate Degree awarded by the Utkal
University of Culture and accordingly, Prachina Kala Kendra,
Chandigarh and Akhila Bharatiya Gandharba Mahavidyalaya Mandal,
Bombay are not recognized by the Utkal University of Culture.
33. Further referring to letter dated 03.01.2018 under Annexure-2
written by Utkal University to the State Project Director, Odisha Adarsha
Vidalaya Sangathan, Odisha, learned Additional Government Advocate
also submitted that equivalency committee pursuant to the meeting held
on 02.07.2017 have been placed to withdraw equivalence of degree
awarded by Akhila Bharatiya Gandharba Mahavidyalaya Mandal,
Bombay. In such view of the matter, learned Additional Government
Advocate emphatically contended before this Court that in view of the
document under Annexure-A/2 to Annexure-C/2, there is no doubt, the
petitioners were not eligible to offer candidature pursuant to the
advertisement made in the year 2015 for the post of Music Teacher and
accordingly, the Opposite Parties have rightly terminated the service of
the petitioners.
34. Learned Additional Government Advocate referring to a judgment
of this Court in the case of by Abanti Rath vrs. State of Odisha in
W.P.(C) No.9197 of 2013 submitted that a coordinate Bench of this
Court has categorically dismissed the writ application on the ground that
// 32 //
the petitioner had no requisite qualification as per the advertisement
issued for the post of Part time Art Instructor (performing at) on the
ground that the petitioner in that case had not acquired qualification from
a University/Institution, which has not been declared as university within
the meaning of Section 2(f) of the U.G.C. Act. Learned coordinate Bench
referring to the Government letter dated 15.03.2013 produced by the
Opposite Parties dismissed the writ application holding that the
institution in question is not a universities within the meaning of U.G.C.
Act, 1956.
35. In addition to the aforesaid contentions, learned Additional
Government Advocate raises the question of scope of interference by this
Court in a matter relating to equivalency of degree is concerned. In the
said context, learned Additional Government Advocate referred to the
judgment passed in the case of Unnikrishnan CV and others vrs. Union
of India and others decided on 28.03.2023 : reported in 2023
LiveLaw(SC) 256. Learned Additional Government Advocate further
specifically referred Paragrah-5 of the said judgment which read as
follows:-
xxx xxx xxx xxx
"5. xx xx xx
// 33 //
It is trite law that courts would not prescribe the
qualification and/or declare the equivalency of a
course. Until and unless rule itself prescribes the
equivalency namely, different courses being treated
alike, the courts would not supplements its view or
substitute its views to that of expert bodies."
36. Learned Additional Government Advocate in the aforesaid context
also referred to the judgment of the Hon'ble Supreme Court in the case of
Guru Nanak Dev University vrs. Sanjay Kumar Katwal and another :
reported in (2009) 1 SCC 610 and Zahoor Ahmad Rathor and others
vrs. Sheikh Imtiyaz Ahmad and others : reported in (2019) 2 SCC 404.
He further referred to Para-6, 7 and 9 of the aforesaid judgments which
have been quoted herein below:-
"6. In Guru Nanak Dev University Vs. Sanjay
Kumar Katwal and another, this Court has
reiterated that equivalence is a technical academic
matter. It cannot be implied or assumed. Any
decision of the academic body of the university
relating to equivalence should be by a specific order
or resolution, duly published. Dealing specifically
with whether a distance education course was
// 34 //
equivalent to the degree of MA (Engligh) of the
appellant University therein, the Court held that no
material had been produced before it to show that
the distance education course had been recognized
as such.
7. In Zahoor Ahmad Rather & Ors. V. Sheikh
Imtiyaz Ahmad & Ors, it was held that the State as
an employer, is entitled to prescribe qualifications
as a condition of eligibility, after taking into
consideration the nature of the job, the aptitude
required for efficient discharge of duties,
functionality of various qualifications, course
content leading up to the acquisition of various
qualifications, etc. Judicial review can neither
expand the ambit of the prescribed qualifications
nor decide the equivalence of the prescribed
qualifications with any other given qualification.
Equivalence of qualification is a matter for the
State, as recruiting authority, to determine."
Finally, the Hon'ble Court in Para-9 of the judgment held
as follows:-
// 35 //
"9. The presumption on which the writ petition
seems to have been presented is on the premise that
appellants have been denied promotion on the
premise that appellants have been denied promotion
on the ground that they possess a two-year diploma
not three-year diploma, by completely ignoring the
fact that denial of promotion is on the ground that
candidates do not possess the prescribed requisite
qualification namely "Diploma in Civil
Engineering" and "Diploma in DED" possessed by
them is not as prescribed under the Rules, it is no
doubt true that eligibility for promotional post
namely Superintendent BR Grade-I is not
conditioned by any year wise stipulations vis-à-vis
the diploma course. In the view of the matter, prayer
of the appellants cannot be granted for the reasons
indicated herein above and we do not find any
fallacy in the reasons assigned by the High Court."
37. Finally, learned Additional Government Advocate referring to the
judgments of the Hon'ble Supreme Court and the documents appended to
the counter affidavit under Annexures-A/2, B/2 submitted that there is no
// 36 //
doubt that the petitioners were not eligible for the post of Music Teacher
pursuant to the advertisement in question and he further submitted that
the authorities have not committed any illegality in terminating the
services of the petitioners by the impugned order. He further contended
that the authorities like Utkal University, Utkal University Culture,
Department of Tourism and Culture being the competent authority are
also competent to prescribe/recommend equivalence of any
course/degree and such declaration is within their sole domain to the
exclusion of jurisdiction of this Court. In the context of the present case,
he further submitted that degree/diploma of Akhila Bharatiya Gandharba
Mahavidyalaya Mandal, Bombay is not equivalent to Music degree of
universities i.e. Utkal University, Utkal University of Culture, State of
Odisha. Accordingly, he submitted that the writ application is devoid of
merit and the same is liable to be dismissed.
38. Having heard learned counsels appearing for the respective parties,
on a careful consideration of the contentions raised by learned counsels
on careful scrutiny of the pleading as well as materials placed before this
Court, this Court is of the considered view that the most pertinent
question which is required to be decided in the present writ application is
as to whether the qualification of "Sangeet Visarad" conferred by Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay in the year 2006-
// 37 //
2012 respectively issued in favour of the petitioner nos.1 and 2 is a
genuine certificate? Secondly, as to whether the qualification of "Sangeet
Visarad" is equivalent to "B.Music" degree granted by outside
institution/university and whether the documents produced by the
petitioners to prove the equivalence is an authenticate one or not? In
other words, the dispute involved in the present batch of writ applications
revolves around the certificate issued by the Akhila Bharatiya Gandharba
Mahavidyalaya Mandal, Bombay and Prachina Kala Kendra, Chandigarh
in favour of the petitioner in the above noted batch of writ applications
are genuine or not and whether the equivalency declared by a recognized
university of the State and the letters issued by such university of the
State deciding equivalence is valid in law or not?
39. Before making any attempt to answer the foresaid questions
formulated by this Court and before adjudicating the issue involved in the
present writ applications, this Court at the outset would like to refer to
clause-4 of the advertisement No.1/2015 under Annexure-1. Clause-3 of
the advertisement provides important instructions and under Sub-clause-
(4) the procedure with regard to certificates issued by the outside State
University/Institution have been laid down. For better understanding the
provisions of clause-3(4) of the advertisement under Annexure-1 is
quoted herein below:-
// 38 //
"(4) Regarding Universities/Institutions of outside
State, the candidates shall only be eligible for
appointment after verification of genuineness of
their educational/training qualification from
concerned University/Institutions from which they
have obtained the degree. Such outside
University/Institution candidates shall have to
produce the authenticated proof of equivalency and
NCTE recognition in support of their qualification at
the time of verification falling which they will not
be eligible in the selection process."
40. On a careful analysis of the aforesaid Sub-clause-(4) of clause-3,
this Court observes, with regard to Universities/Institutions of outside
State, the candidates, who have obtained such certificates shall only be
eligible for appointment after verification of qualification from such
Universities/Institutions. Moreover, candidates who have undergone the
course in such outside institutions/universities and relying upon such
certificate for appointment shall have to produce authenticated proof of
equivalency in support of their qualification at the time of verification
failing which such candidates will not be eligible in the selection process.
// 39 //
41. In the instant case, the facts pleaded by the petitioners and the
certificate produced at the time of submission of online applications are
to be tested with the touchstone of clause-3(4) of the advertisement.
Therefore, by applying the yardstick of the clause-3(4) of the
advertisement to the facts of the present case, this Court observes that the
Opposite Parties having not disputed the genuineness of the
educational/training qualification or even genuineness of the certificate
produced by the petitioner as "Sangeet Visarad", in such view of the
matter, this Court has no hesitation to hold that the certificates produced
by the petitioner from Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay as well as Prachina Kala Kendra, Chandigarh are
genuine certificate issued by such outside State institutions. It is apt to
mention here that the petitioners also admit the fact that the aforesaid two
institutions are not recognized university under Section 2(f) of the U.G.C.
Act. Therefore, the same are to be treated as outside State institutions.
42. Since the qualification obtained from the outside institutions are
also eligible under clause-3(4), therefore, the certificates issued by the
said outside State institutions shall be treated to be valid provided to the
petitioner produce the authenticated proof of equivalency. The condition
with regard to the NCTE recognition is not application to the case of the
petitioners as well as the institutions which are in question in the present
// 40 //
writ applications. In such view of the matter, the entire dispute boils
down to the point as to whether the certificates of "Sangeet Visarad"
issued by Akhila Bharatiya Gandharba Mahavidyalaya Mandal, Bombay
or Prachina Kala Kendra, Chandigarh have been declared as equivalent
by the university of the State by the time and the petitioners submitted
their application pursuant to the advertisement under Annexure-1.
43. With regard to the qualification and experience for appointment as
Music Teachers, the advertisement under Annexure-1 under clause-5(3)
and under the heading "Music Teachers provides:-
I. Senior Secondary School Certificate or
Intermediate and Bachelor Degree in Music from a
recognized University.
II. Competence to teach through English/Odia
medium and it is desirable that the candidates should
have knowledge of computer application.
Therefore, the petitioners for appointment as Music Teachers are
required to establish to favour Senior Secondary School Certificate or
intermediate and Bachelor Degree in Music Degree from a recognized
university. In the instant case, both the clauses-5(3) and 3(4) of the
advertisement are read conjointly and harmoniously to get clear intention
// 41 //
with regard to qualification of Music Teachers as fixed in the
advertisement under Annexure-1.
44. As has been stated hereinabove, the petitioners have obtained the
qualification and certificated of "Sangeet Visarad" from outside the State
institution like Akhila Bharatiya Gandharba Mahavidyalaya Mandal,
Bombay or Prachina Kala Kendra, Chandigarh, which are admittedly
institutions imparting course of music and well established in the national
level. Further, going through the materials placed before this Court and
submissions made the counsels appearing for the petitioners in the batch
of writ petitions, this Court observed the above noted institutions are very
old music institutions of the country and the same has produced many
legends in the field of music in the country. No doubt the above noted
two institutions have not been declared as university under Section 2(f)
of the U.G.C. Act. Therefore, they are to be treated as outside institutions
for the purpose of the advertisement and accordingly, the validity of the
certificates issued by such institutions are to be decided by applying the
test prescribed in clause-3(4) of the advertisement. This Court also
observed that the Opposite Parties have not disputed the genuineness of
the certificates issued by the above noted two institutions. However,
learned Additional Government Advocate raised objection with regard to
// 42 //
declaration of equivalence and submitted that equivalency is required to
be mandatorily proved by the petitioner by producing authentic proof.
45. So far equivalency is concerned, this Court is conscious of the
legal position and it is the settled position of law that
declaration/consideration of equivalence is a subject matter that doesn't
come within the domain/purview of a Court of law or any other
authorities, rather the same comes within the exclusive domain of the
authorities/expert bodies who have been conferred with such power to
consider and declare such equivalence. Mostly, it is the expert body of
the universities concerned, which are competent to decide the
equivalence of any course/degree and the Court should ordinarily refrain
from interfering in such actions and not to substitute its views replacing
the view/opinion given by such expert bodies with regard to equivalence.
46. In the aforesaid context, this court would like to refer to the latest
judgment of the Hon'ble Supreme Court decided on 28th of March, 2023,
in the matter of Unnikrishnan CV and others vrs. Union of India and
others decided on 28.03.2023 : reported in 2023 SCC Online 343. In the
above referred judgment of three Judge Bench of Hon'ble Supreme Court
of India, it has been categorically stated that it is trite law that the Court
should not prescribe the qualification and/of the declaration of
equivalency of the course. Until and unless the rules itself prescribes the
// 43 //
equivalency, namely, different courses be treated like the courts would
not supplement its views or substitute its views with that of the expert
bodies. In view of the aforesaid judgment, this Court holds that it is out
of the purview/jurisdiction of this Court to either prescribing the
qualification or declare the equivalence of course which is within the sole
domain of the universities/State conferred with such power to decide the
equivalence of course by virtue of its own regulation/first statute or rules.
47. Reverting back to the facts of the present case, this Court is of the
considered view that unless the equivalence of "Sangeet Visarad" is
decided by an expert body/university which is competent to do so, this
Court, at this juncture, cannot declare or decide such equivalence.
Keeping in view the aforesaid principle in mind, this Court would now
proceed to examine as to whether the certificate of "Sangeet Visarad"
issued by two institutions in question could be considered as equivalent
to either "B. Music" or "M. Music" course imparted by any of the
recognized universities of the State.
48. Before adverting to decide such an issue by analyzing documents
placed before this Court, this court would like to refer to an important
development in the matter i.e. initially the certificate of "Sangeet
Visharad" produced by the petitioners were accepted by the authorities.
After verification, the petitioners were given appointment vide
// 44 //
appointment letter dated 11.04.2016 under Annexure-3 and accordingly,
they were posted at different OAVs in the State of Odisha. Further,
clause-3(4) reveals that the proof of equivalence in support of their
qualifications are to be produced at the time of verification, finally they
will be eligible for such appointment as Music Teacher. Therefore, this
Court has reason to believe that after verification at the time of selection,
the certificates produced by the petitioners were found genuine and the
same are supported by the proof of equivalence. As such, they were
appointed as Music Teachers in different OAVs.
49. After the petitioners completed their initial period of probation, the
Opposite Parties all of a sudden issued notices in January, 2019 calling
upon the petitioner to appear in the office of OPEPA on 02.04.2019 for
verification of original / certificates in support of petitioners'
qualification. The letter dated 16.1.2019 does not reveal that the
petitioners were not even asked to produce proof with regard to
declaration of equivalence in respect of their qualifications. The
petitioners appeared pursuant to the notice and the Opposite Parties
without giving any opportunity to the petitioners to show show-cause
have passed the termination order mechanically without application of
mind vide order dated 13.02.2019 under Annexure-6 series. Such
rejection order reveals that candidates having outside
// 45 //
universities/institutions certificate shall have to produce authenticated
proof of equivalence and NCTE recognition in support of their
qualification and since the authorities found that the petitioners do not
have valid proof in support of such equivalency, the State Project
Director cancelled the selection and terminated the appointment of the
petitioner with immediate effect.
50. Coming back to the issue of equivalence of the qualification
possessed by the petitioners, as has been observed, the same is issued by
outside State institution and not by an university, therefore, the same
cannot be treated as a degree by a recognized university. However, the
petitioners have produced certificate, documents which are required to be
analyzed by this Court. The letter dated 10.07.1976 issued by the U.G.C.
itself wherein it has been correctly stated that the institution Akhila
Bharatiya Gandharba Mahavidyalaya Mandal, Bombay is not a university
within the meaning of U.G.C. and as such, they are not competent to
award degree and use the name of an university. It is further clarified that
said institution is competent to award certificates and diplomas. Further,
said letter reveals that the U.G.C. has not issued any general advisory to
any university to the effect that they cannot appointment persons, who
have taken diploma or certificates from such institution, rather it is up to
// 46 //
such universities to decide and declare the equivalence of any course or
degree after due examination of the facts.
51. The next letter that was relied upon by the learned counsel for the
petitioner is very pertinent so far the issue involved in the present writ
applications. Letter No.48695 dated 31.08.2001 under Annexure-8 has
been issued under the signature of the Deputy Registrar of Utkal
University. The same further reveals that Vice-Chancellor of the
university in exercise of his power conferred under Section 6(15) of the
Universities Act 1989 has recognized the Sangeet Alankar/M.Music,
Degree/Diploma issued by Akhila Bharatiya Gandharba Mahavidyalaya
Mandal, Bombay as equivalent to the examination of the Utkal
University and M.Music, Degree and Diploma of Utkal University on
reciprocal basis. Therefore, the aforesaid letter of the year 2001 is very
specific and clear with regard to declaration of equivalence by the Vice-
Chancellor of Utkal University in exercise of power conferred upon him
by the Utkal University Act, 1989. Therefore, this Court found no defect
in the said letter, on the contrary, this Court accepts the same to be a
valid one. Such equivalence granted by Utkal University was valid
through the selection process which was carried out pursuant to the
advertisement under Annexure-1 and was also valid when the
appointment letter dated 11.04.2019 under Annexure-4 was issued in
// 47 //
favor of the petitioner. Therefore, the opposite parties have rightly
accepted the candidature of the petitioners on the basis of "Sangeet
Visharad"/ Diploma certificate issued by the Akhila Bharatiya
Gandharba Mahavidyalaya Mandal, Bombay with the proof i.e. letter
dated 31.08.2001 issued by Utkal University under Annexure-8.
52. The aforesaid equivalence declaration made by Utkal University
vide letter dated 31.08.2001 was valid till the same was withdrawn by the
equivalence committee in its meeting held on 17.02.2017. Perusal of the
proceeding of the meeting held on 17.02.2017 under Annexure-9 reveals
that the equivalence of Diploma/degree awarded by Prachina Kala
Kendra, Chandigarh was valid till that date and the recognition granted
vide letter dated 04.08.1959/2001 dated 31.08.2001 under Annexure-8
was withdrawn w.e.f. 17.02.2017. In such view of the matter, this Court
has no hesitation in coming to the conclusion that the equivalence
granted by the Utkal University in exercise of power conferred under
Universities Act, 1989 was in force till 17.02.2017.
53. In addition to the above, the petitioners have also filed another
letter dated 06.12.2001 under Annexure-10. On perusal of the said letter
also it is revealed that North Odisha University which is also a statutory
university has declared the equivalence of B.A., M.A./Ph.D. to Vishard,
Alankar and Sangeetacharya Diploma issued by Akhila Bharatiya
// 48 //
Gandharba Mahavidyalaya Mandal, Bombay. Further it appears that such
declaration of made equivalence by North Odisha University is still valid
and the same has not yet been withdrawn. There is nothing in the counter
affidavit which would reveal that such declaration of equivalent has been
withdrawn by the North Odisha University. In addition to the aforesaid
two universities, learned counsels for the petitioners have also submitted
that equivalence has been declared by many other universities outside the
State of Odisha. However, in view of the recognition by two of the
leading and statutory university of the State, this Court deems it not
necessary to delve into such facts and examine the equivalence declared
by said universities from outside the State.
54. It would be apt to mention here that Jawaharlal Navadoya
Vidyalaya Samiti, is an autonomous organization under the Ministry of
HRD Department, School and Literacy, Government of India has issued
a set of guidelines. On perusal of the said guidelines issued to all
principals of JNVs in Bhopal region, which also includes the Principals
of Cuttack and Sambalpur JNV, it is observed that the eligibility criteria
that has been fixed for selection and appointment of Music Teacher also
includes "Sangeet Visharad" examination of Akhila Bharatiya Gandharba
Mahavidyalaya Mandal, Bombay and Prachina Kala Kendra, Chandigarh
along with many other recognized institution of the country.
// 49 //
Accordingly, Music Teachers having qualification from these two
institutions have been selected and appointed by JNVs.
55. With regard to the argument advanced by learned Additional
Government Advocate that withdrawal of letter dated 31.08.2001 is a
mere technical formality as the Utkal University had no jurisdiction to
award B.Music degree after creation of Utkal University of Culture,
Bhubaneswar and letter dated 31.08.2001 issued by Utkal University
specifically relates to M.Music degree not to B.Music degree and that the
said letter is not relevant in the context of the present case, is devoid of
merit and legally unsustainable. Once the certificate was issued by Utkal
University in exercise of power conferred under Utkal University Act,
1989, the same remains valid till the same is validly withdrawn by Utkal
University regardless of the fact that Utkal University Culture,
Bhubaneswar came into existence in the meantime.
56. In view of the aforesaid analysis of fact as well as the position of
law, this Court has not hesitation to hold that the certificates issued by
Akhila Bharatiya Gandharba Mahavidyalaya Mandal, Bombay or
Prachina Kala Kendra, Chandigarh were valid at the time of selection and
appointment of the petitioners and the same has been supported by a
credible proof in the nature of the letter dated 31.08.2001 under
Anenxure-8 and other relevant materials. Further this Court on a careful
// 50 //
consideration of the facts involved in the present writ applications is of
the considered view that the authorities have committed a gross illegality
by not giving proper notice to show-cause to the petitioners before
cancelling the selection and terminating their appointment. Therefore,
such termination letter dated 13.02.2019 issued by the Opposite Party
No.2 under Annexure-6 series has been issued in gross violation of
principle of natural justice and without appreciating the matter in its
proper perspective. Hence, this Court deems it proper to quash the
impugned termination order dated 13.02.2019 under Annexure-6 series in
respect of the petitioners. Furthermore, in view of the above categorical
finding with regard to the certificate issued by institutions in question are
valid, there is no need to remand the matter back again to the authority
for re-consideration. Accordingly, the writ petitions are allowed and the
Opposite Parties are directed to reinstate the petitioner in service with all
consequential service and financial benefits. Since the petitioners have
not worked after termination and there is no evidence or pleading that
they were not gainfully employed, by applying the principles of no work
no pay from the date of issuance of termination order dated 13.02.2019,
they will not be entitled to claim any salary back wages for the aforesaid
period till the date reinstatement in service. However, it is made clear
// 51 //
that the aforesaid period shall be counted towards their seniority and for
calculation of all service as well as pensionary benefits.
57. Accordingly, the writ petitions are allowed. However, there shall
be no order as to cost.
( A.K. Mohapatra )
Judge
Orissa High Court, Cuttack
The 12th of May, 2023/ Jagabandhu
JAGABAND Digitally signed by
JAGABANDHU BEHERA
HU BEHERA Date: 2023.05.18
09:53:30 +05'30'
