Nand Lal Kumhar vs The State Of Rajasthan
2021 Latest Caselaw 15950 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4868/2020

1. Nand Lal Kumhar S/o Sh. Bhairu Lal Kumhar, Aged About 32 Years, R/o Hameergarh, District- Bhilwara.

2. Gajmat Jat S/o Sh. Magna Ram Jat, Aged About 35 Years, R/o- Village/post- Jalampura, Tehsil- Hurda, District- Bhilwara.

3. Deva Lal Dhaker S/o Sh. Chunni Lal Dhaker, Aged About 39 Years, R/o- Village- Kalyanpura, Post- Gopalpura, Tehsil- Bijoliya, District- Bhilwara.

4. Shankar Dayal Jaiswal S/o Sh. Mathura Lal, Aged About 47 Years, R/o- Village- Morchana, Post- Pasund, District- Rajsamand.

5. Hariom Bairwa S/o Sh. Pyare Lal Bairwa, Aged About 39 Years, R/o- Vpo- Machadi, Tehsil- Raini, District- Alwar.

6. Rajkumar Arya S/o Sh. Prema Ram, Aged About 31 Years, R/o- Village- Patiya, Tehsil- Bheem, District- Rajsamand.

7. Nawab Mirza S/o Sh. Faiyaz Beg, Aged About 30 Years, R/ o- Behind Jail School, Mohalla Sheikhwara, District- Dungapur.

8. Umashanker Lodha S/o Sh. Laxman Singh Lodha, Aged About 37 Years, R/o- 161, Ward No. 5, Nathdwara, District- Rajsamand.

9. Parmeshwar Kumar Payak S/o Sh. Rajendra Kumar Payak, Aged About 32 Years, R/o- Kalaltwati, Rajnagar, District- Rajsamand.

----Petitioners Versus

1. The State Of Rajasthan, Through The Principal Secretary, Medical And Health Services, Government Of Rajasthan, Jaipur.

2. The Director, Medical And Health Services, Directorate Of Medical And Health Services, Government Of Rajasthan, Jaipur.

3. The Additional Director (Admn.), Medical And Health Services, Directorate Of Medical And Health Services, Government Of Rajasthan, Jaipur.

4. The Rajasthan Staff Selection Board, Through The President, Rajasthan Staff Selection Board, Jaipur.

5. The Rajasthan Paramedical Council, Jaipur, Through The Registrar, Office- House No. 6-7, Everest Colony, Near Apex Mall, Lal Kothi, Tonk Road, Jaipur - 302015

----Respondents

For Petitioner(s) : Mr. R.S. Saluja

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For Respondent(s) : Mr. Bhavit Sharma

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

22/10/2021

In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

Learned counsel for the petitioners submits that the present

controversy is covered by the judgment rendered by this Hon'ble

Court at Jaipur Bench in Lalit Kishor Vs. State of Rajasthan &

Ors. (S.B. Civil Writ Petition No.8908/2020, decided on

23.10.2020). Learned counsel also submits that the issue

involved herein is covered in Issues No.F & G, as mentioned in the

aforesaid judgment.

Relevant para 10 pertaining to Issue No.F and para 11

pertaining to Issue No.G in the aforementioned judgment read as

under:

"10. ISSUE NO.F - The Rajasthan Para Medical Council has refused to register the candidates who have obtained Diploma by Distance Education.

10.1 The question with regard to the Distance Education Course being conducted, the Supreme Court in Orissa Lift Irrigation Corporation Limited Versus Rabi Sankar Patro & Ors., reported in (2018) 1 SCC 468, was examining the Distance Education Course Guidelines issued by the University Grants Commission (UGC) for off-campus distance education with respect to the Engineering Courses being conducted by the various Universities apart from Indira Gandhi National Open University (IGNOU) and it was held that such courses principally cannot be conducted, however, all the candidates, who had cleared the said courses between period 2001 to 2005, were asked to give an option to appear for an examination to be conducted by the AICTE for

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the said purpose and if they cleared the test within the stipulated time, the benefits of having obtained Engineering Degree Course would stand revived. Further observations were made in relation to other course too. Thereafter, in 2010, the UGC had framed UGC (Institutions Deemed to be University) Regulations (the 2010 Deemed Universities Regulations) wherein Regulation 18.0 provided as under:

"18.0. Distance education - No institution deemed to be university, so declared by the Central Government subsequent to these Regulations, shall be allowed to conduct courses in the distance mode. Also such institutions declared as such, prior to these Regulations, shall not be allowed to conduct courses in the distance mode from any of its off-campus centre/off-shore campus approved subsequent to these Regulations."

10.2 After examining the aforesaid provisions, the Supreme Court held as under:

"48. Technical education leading to the award of degrees in Engineering consists of imparting of lessons in theory as well as practicals. The practicals form the backbone of such education which is hands-on approach involving actual application of principles taught in theory under the watchful eyes of Demonstrators or Lecturers. Face to face imparting of knowledge in theory classes is to be reinforced in practical classes. The practicals, thus, constitute an integral part of the technical education system. If this established concept of imparting technical education as a qualitative norm is to be modified or altered and in a given case to be substituted by distance education learning, then as a concept the AICTE ought to have accepted it in clear terms. What parameters ought to be satisfied if the regular course of imparting technical education is in any way to be modified or altered, is for AICTE alone to decide. The decision must be specific and unequivocal and cannot be inferred merely because of absence of any Guidelines in the matter. No such decision was ever expressed by AICTE. On the other hand, it has always maintained that courses leading to degrees in Engineering cannot be undertaken through distance education mode. Whether that approach is correct or not is not the point in issue. For the present purposes, if according to AICTE such courses ought not to be taught in distance education mode, that is the final word and is binding - unless rectified in a manner known to law. Even National Policy on Education while emphasizing the need to have a flexible, pattern and

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programmes through distance education learning in technical and managerial education, laid down in Para 6.19 that AICTE will be responsible for planning, formulation and maintenance of norms and standards including maintenance of parity of certification and ensuring coordinated and integrated development of technical and management education. In our view whether subjects leading to degrees in Engineering, could be taught in distance education mode or not is within the exclusive domain of the AICTE. The answer to the first limb of the first question posed by us is therefore clear that without the Guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the Deemed to be Universities were not justified in introducing such courses."

10.3 The other question in the aforesaid case was with regard to AICTE Regulations, which provided that "no courses or programmes shall be introduced by any technical institution, university including a deemed university or university department or college except with the approval of the Council". The said provision was declared to be bad in law by the Supreme Court in the case of Bharathidasan University Versus AICTE, reported in (2001) 8 SCC 676 in relation to Universities, which are duly recognized by the UGC and it was held that prior approval for introducing any course or programme was not required. However, the Supreme Court in this case viz. Orissa Lift Irrigation Corporation Limited (supra) did not approve the action of the Distance Education Council allowing deemed Universities to start such courses and it was held as under:

"66.11. We restrain all deemed to be Universities to carry on any courses in distance education mode from the Academic Session 2018-2019 onwards unless and until it is permissible to conduct such courses in distance education mode and specific permissions are granted by the concerned statutory/regulatory authorities in respect of each of those courses and unless the off-campus Centres/Study Centres are individually inspected and found adequate by the concerned Statutory Authorities. The approvals have to be course specific."

10.4 Learned counsel for the respondents submits that as per Para 15(6) of the advertisement dated 12.06.2020 those candidates who have done professional course through distance mode cannot be treated as eligible for appointment. Learned counsel submits

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that AICTE's letter dated 05.09.2012 reflects that such courses were recognized by them although it did not have authority to grant such recognition for Para Medical Course. In this regard, learned counsel for the petitioners submit that they have challenged condition No.15(6) of the advertisement dated 12.06.2020, which declares the candidates ineligible who have done their professional course through distance mode. The Government of Rajasthan vide its letter dated 18.10.2012 had recognized degree diploma awarded by the Open Universities. It is further submitted that All India Council of Technical Education, which was holding the field at the relevant time had approved the programme through the distance mode and a letter was sent to the Vice-Chancellor of NIMS University for approving their Diploma in Medical Laboratory Technology, hence, the students who have cleared the examination and diploma prior to 2015 ought to be treated as having done a duly approved diploma in DMLT and they are entitled for registration.

10.5 This court finds while the Supreme Court in Orissa Lift Irrigation Corporation Limited (supra) has disapproved the action of the AICTE in allowing the distance mode education in technical courses, it allowed the candidates who had passed the examination between 2001 to 2005 to appear for an examination, which may be conducted by the AICTE.

10.6 Keeping in view the aforesaid aspect, this Court is of the firm view that those candidates who have done Diploma in Medical Lab Technology by distance education mode cannot be treated at the moment to be eligible for appointment on the posts under the advertisement dated 12.06.2020. The qualification acquired by them shall be treated as suspended. However, the Rajasthan Para Medical Council is directed to device a framework for conducting examination for all those candidates who have acquired Diploma in Medical Lab Technology prior to 2015 by distance education mode and seek option from all the candidates to appear for an examination, which shall be conducted by them. If such students submit their option for appearing in the examination and pass the examination, their qualification acquired through distance education mode shall stand revived and they would be treated as eligible for future selection process.

10.7 In view of what has been held above, condition No.15(6) of the advertisement dated 12.06.2020 is also found to be justified and the candidates who have passed the course by distance education mode

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shall be treated as ineligible for appointment. The writ petitions of such petitioners are accordingly dismissed.

11. ISSUE NO.G - The candidates who have obtained the Diploma from other Universities outside the State and have been refused registration by the Rajasthan Para Medical Council. 11.1 So far as issue No.G is concerned, namely, refusal of the Rajasthan Para Medical Council to register/rejection of candidature of persons who have done diploma course from other States is concerned, it is noticed that the Rajasthan Para Medical Council has been found under the Rajasthan Para Medical Council Act, 2008, which governs the Para Medical Courses and Para Medical Services in the Rajasthan. Thus, even if, a person may have done Para Medical Course from any University in any other State, as per the Schedule to the Rules of 1965 as amended in 2013, a person is required to be registered with the Rajasthan Para Medical Council and then alone he/she is eligible.

11.2 None of the counsels for the petitioners have argued with regard to challenge to the eligibility criteria laid down under the Schedule to the Rules of 1965, which only allows registration with the Rajasthan Para Medical Council. Hence, this court would not deal with it in the present petitions. It is, therefore, held that only after having been registered with the Rajasthan Para Medical Council, which I am told follows the procedure of receiving NOC from other States before registering a candidate, can a candidate be treated as eligible. Accordingly, the writ petitions are partly allowed.

Learned counsel for the respondents fairly submits that the

issue is covered, as aforesaid.

In light of such submissions, the present petition is disposed

of, with the observation that Issues No.F & G in the

aforementioned judgment shall apply to the present case also. All

pending applications also stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

115-SKant/-

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