Punjab-Haryana High Court
Malkeet Singh vs State Of Punjab And Others on 20 April, 2021
Equivalent citations: AIRONLINE 2021 P AND H 295
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
In the High Court of Punjab and Haryana, at Chandigarh
Civil Writ Petition No. 15008 of 2020
Date of Decision: 20.04.2021
Malkeet Singh
... Petitioner(s)
Versus
State of Punjab and Others
... Respondent(s)
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. Vikas Singh, Advocate
for the petitioner.
Ms. Maloo Chahal, Deputy Advocate General,
Punjab for the respondents.
Anil Kshetarpal, J.
Through this writ petition, filed under Article 226 of the Constitution of India, the petitioner prays for issuance of a writ in the nature of certiorari to quash the order dated 28.08.2020 (Annexure P15), whereby the services of the petitioner have been dispensed with.
The petitioner was employed on compassionate basis on 24.12.2015 as a Clerk after his father, who was working as a Driver, died on 28.08.2008. At the time of appointment, the petitioner claimed that he is a graduate from Mahatma Gandhi University, Meghalaya, India. The respondent-State, on verification of the degree, has found that the aforesaid University did not have the required permission to open Study Center/Off Campus Center and therefore, the graduation degree of the University is not recognized. The learned counsel for the petitioner contends that as per the 1 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 2 Punjab Roadways (Ministerial) State Services Class-III Rules, 1977 (hereinafter referred to as "the 1977 Rules"), the minimum qualification is matriculation and not graduation. Further, the learned counsel for the petitioner contends that the services of the petitioner cannot be dispensed with in view of the judgment passed in Karamjeet Kaur v. State of Punjab and Others 2019 (3) SCT 162.
Per contra, the respondents have filed a detailed written statement contending that the petitioner does not possess the minimum qualification as the graduation degree is not recognized. It has further been pointed out that as per Rule 15 of the Punjab Civil Services (General and Common Conditions) Rules, 1994 (hereinafter referred to as "the 1994 Rules"), the minimum academic qualification for the post of Clerk is graduation and since Rule 20 ibid has been given an overriding effect, therefore, no Clerk can be appointed in the service of the State without possessing the minimum qualification.
This Bench has heard learned counsel for the parties at length and with their able assistance, perused the paper-book.
As regards the first argument, it may be noted that in the appointment letter itself, it was indicated that the services of the petitioner shall be governed by the 1977 Rules as well as the Punjab Civil Services Rules. Rule 15 clearly provides that the minimum qualification for the post of Clerk is graduate and not matriculation. Further, Rule 20 of the 1994 Rules starts with a non-obstante clause and therefore, has been given an overriding effect as it is placed on a higher pedestal. In view thereof, the argument of learned counsel for the petitioner that the minimum 2 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 3 qualification for the post of Clerk is matriculation does not have any substance.
As regards the next argument, it is to be noted that in Karamjeet Kaur (supra), a Co-ordinate Bench, while examining the issue in detail, has laid down the following parameters/directions:
"52. Upon consideration of facts, developments and change in distance education policies over the time and the findings recorded under different heads from HEAD "A" To "G"
following parameters/directions are issued:-
(i) In case of Deemed Universities and Private Institutions (other than Universities) the cut-off date with regard to territorial jurisdiction and study centre will be 29.3.2010, all admissions made prior to 29.3.2010 to obtain degrees awarded through use of study centres, off-
campus centres of Deemed Universities and Private Institutions (other than Universities) will be valid, subject to the statutes/ MOA (Memorandum of Association) of University permitting opening up of Centres in the territory from which it was operating or permits opening up of centres at any place where there are reasonable concentration of students (as permitted by UGC in 1985 Regulations, Annexure P-34).
(ii) In case of State Universities (both Government funded or Private funded)the cut-off date will be 1.11.2012 , therefore all admissions made prior to 3 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 4 1.11.2012 to obtain degrees awarded through use study centres/off campus centres of State Universities or Private Universities will be valid, subject to the statutes/ MOA of University permitting opening up of Centre in the territory from which it is operating or permits opening up of centres at any place where there are reasonable concentration of students (as permitted by UGC in 1985 Regulations, Annexure P-34).
(iii) The qualifications attained after the cut-off date mentioned above will stand de-recognised for all purposes. However as opening up of study centers was permitted after prior approval from UGC, it is clarified that even after the cut-off date if the qualification attained through distance education mode from Institutions (other than University) / Universities (Central University, State University, Deemed University or Private University) is in consonance with the regulations/ notifications/policies of DEC/ UGC with regard to territorial jurisdiction and study centres prevailing at the relevant time and the study centre is approved by the UGC, then the qualification will be recognised and valid. This observation has been made due to lack of complete Information before this Court, as no list of approved study centres has been brought before this Hon'ble Court.
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(iv) With regard to First degrees awarded by Universities [including Central Universities, State Universities, Private Universities, Deemed Universities] by way of Distance Education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences are concerned, the same shall be valid in light of the 1985 regulations (Annexure P-34) permitting imparting education though distance mode via study centres, subject to being admitted in the University prior to the cut-off date mentioned above in para no. (i) & (ii) of parameters laid above, as the case may be.
(v) With regard to Post graduation degrees awarded by way of distance education in non-technical field (such as Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences etc.) in cases where Institutional Recognition has been granted, if the qualification is in terms of MOA (Memorandum of Association) / Acts/ Statute of the University viz the field of specialization and the degree is notified under Section 22 of the UGC Act (List of degrees specified under Section 22 of UGC Act is on record as Annexure P38) the same shall stand validated, subject to being admitted in the University prior to the cut-off date mentioned above in para no. (i) & (ii) of parameters laid above, as the case may be.
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(vi) With regard to post graduation degrees awarded by way of distance education in Non-Technical Field (such as Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences etc.) where programme wise recognition has been granted, only those qualifications will be valid which have been mentioned in the list of approved/recognised qualifications, subject to being admitted in the University prior to the cut-off date mentioned above in para no. (i) & (ii) of parameters laid above, as the case may be.
(vii) The qualifications which have been held to be valid above be treated as at par with the degrees awarded by way of conventional mode/ regular mode of education.
(viii) The State Government is directed to take necessary action in terms of the above findings within a period of 6 months from the date of receipt of certified copy of the order. The State government can verify the recognition list [whether University (Central, State, Deemed or Private) /Institution (other than University) had "Institutional Recognition"at particular time or "Programme-wise Recognition"] uploaded by the Distance Education Bureau, UGC on its website, which is also on record as Annexure P-57. Further the State government can also verify as to whether degree has 6 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 7 been mentioned in the list of degree specified under Section 22 of UGC Act or not from the list uploaded on the website of UGC which is also on record as Annexure P-38.With regard to Memorandum of Association, Act and Statutes of the universities, the State government can obtain the same from the students whose cases are pending at the level of the government or from the concerned universities or from the UGC.
(ix) The State government after completing the exercise in terms of Para No.(viii) hereinabove would start a portal/webpage/ website wherein information with regard to recognition of different types of degrees from various universities is uploaded, so that not only general public is aware with regard to recognition of degrees, but also uniformity & transparency can be maintained with regard to implementation of the aforesaid directions, in all the departments of the State Government right down till the field level.
For clarity an illustration is being given hereunder:-
To verify the qualification of a candidate who has attained qualification of M.A. through distance education mode from a University in Rajasthan having centre in Punjab, the state will firstly check the status of the University viz if the university is a Deemed University then cut-off date
7 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 8 mentioned above in para no. (i) of parameters laid above will be applicable and in case of state universities and private universities cut-off date mentioned above in para no. (ii) of parameters laid above will be applicable.
In case the candidate has got admission in the course after the cut-off date, the same shall be invalid, however if he was admitted in the course prior to the cutoff date in that case the state will then verify the statutes/MOA of the University and if the degree is in the field mentioned in the statutes/ MOA and is also mentioned in the list of degree specified under Section 22 of the UGC, then the qualification will be considered as valid subject to the territory from which University is operating is in consonance with the Acts/ Statutes / MOA of the University. As in the present Illustration if in the statutes/MOA of University field of Arts is mentioned and the degree of M.A. is also mentioned in the list of degree specified under Section 22 and in the Statute/ MOA of University it is mentioned that territorial jurisdiction of University is throughout the territory of India or that it can open centres where ever there are reasonable concentration of students,then the 8 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 9 qualification attained from centre at Punjab shall be considered as valid.
(x) In view to reduce litigation and hardship of the candidates/ students liberty is being granted to all the students/candidates who will be affected on account of noncompliance of the aforesaid directions, by the State Government, to adopt appropriate recourse of law including filing of the contempt petition.
(xi) It is clarified for all purposes, that the candidates whose degree will stand invalidated in view of the parameters mentioned above, all benefits secured by such candidates/ employees shall stand withdrawn, however if any monetary benefit has been drawn such as salary etc. the same shall not be recovered. In such cases the employees /candidates will be at the liberty to take appropriate action, as available under law, so as to recover the amount paid towards tuition fees, expenditure incurred, damages etc. etc. from the University/ Institution concerned. The above said direction is being given on the lines of directions, in similar situation issued by the Hon'ble Supreme Court of India in paragraph 53 (vii) of the judgment reported as 2017 (4) SCT 683: 2017 AIR (SC) 5179 titled as Orissa Lift Irrigation Corp. Ltd V. Rabi Sankar Patro.
However this Court considering the hardships to 9 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 10 be faced by the employee for no fault of his and who on the basis of the above said qualification which is not in terms of the aforesaid parameters, had secured jobs (on regular basis/ permanent basis as per Recruitment Rules) and had settled in their life and have attained ample experience while performing the duties on the post which he/ she is holding for a substantial period of time, considers it appropriate that a one-time concession be granted to the effect, that the persons who are already in job on the basis of the qualification which might be invalidated on account of above said directions, be permitted to continue in job, but in the cases where the qualification if invalidated was essential qualification to hold the post, they shall not be granted any further benefits, viz promotion etc. etc. In the cases where qualification which does not fulfill the above said parameters is not an essential qualification and has been utilized only for securing higher marks at the time of selection, their case be treated separately as they fulfill the requisite qualification in terms of the statutory rules governing the post, therefore they will be entitled for all further benefits subject to that even in case of promotion the qualification so invalidated is not an essential qualification.
Similarly in cases where an employee was 10 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 11 recruited on temporary basis after due selection process based upon distance education degrees (now invalidated in view of the parameters laid above) but has been denied regularization of services on account of such distance education degrees despite otherwise being eligible, suitable for regularization, while other persons recruited along with such employee have been regularized in service, in such cases benefit of regularization be extended if the qualification (attained through distance education mode) so invalidated is not an essential qualification to hold the post in terms of statutory rules and is an additional qualification which may have been used for attaining additional marks at the time of initial selection. All benefits of service will be extended as have been granted to other employees recruited in the same selection or appointment made at the same time. However, if the qualification from distance education mode (which now stands invalidated in view of above parameters) is essential qualification to hold the post, in that case NO benefit will be granted including benefit of regularization. It is so being laid down as temporary employee has no vested right to hold the post.
Note:-
(a) It is clarified that, in case where the respondent
11 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 12 State did not consider any person for appointment by way of direct recruitment or by promotion on account of possessing qualification through distance education mode, but has been issued orders pursuant to interim orders issued by the Hon'ble Court or has been issued conditionally subject to outcome of any petition pending before the Hon'ble Court, in that case concession granted hereinabove will not be extended. The concession has been given on the rationale that there was complete disclosure on part of employee and state having found eligible, permitted employee to work for a considerable period, irrespective of holding a distance education degree.
(b) In a situation where the graduation or post- graduation has been attained through distance education mode and higher qualification has been attained through normal mode/conventional mode but his graduation or post-graduation degree attained through distance education mode stands invalidated in view of the aforesaid parameters, then the higher qualification attained on the basis of the degree so invalidated will also stand invalidated, as illegality at the original/ foundation stage being a nullity cannot be cured by subsequent acquisition of valid higher degree based upon such invalid degree. It is well settled that in case of 12 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 13 foundation being a nullity the whole edifice constructed thereupon has to fall. This view finds support from the law laid down by the Hon'ble Apex Court in the case of M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav 2007 (4) SCT 464 and by this Court in Jagir Singh v. State of Haryana reported as 2006 (7) SCT 386.
(c) Needless to say, that in case where candidate has obtained a degree by attending the PCPs and has undertaken exams in the main campus or within the State where the University (as defined under Section 2 (f) and Section 3 of UGC Act) is situated, in that case their degree shall be valid, as no question of territorial jurisdiction arises. This is subject to the University, having recognition to impart education in such field (at the time of institutional recognition, MOA/Statutes of University permits imparting education in such field and at the time of programme-wise recognition such course had been permitted)".
From a careful perusal of the order impugned herein, it is apparent that the Mahatma Gandhi University, Meghalya, is a Private University. Still further, on careful perusal of the statement of marks (Annexure P2), it is apparent that the Mahatma Gandhi University was set up by the Mahatma Gandhi University Act, 2010.
Keeping in view the aforesaid facts, it is considered appropriate to set aside the order (Annexure P15) and direct the respondents to pass a 13 of 14 ::: Downloaded on - 05-06-2021 23:14:28 ::: Civil Writ Petition No. 15008 of 2020 14 fresh order after taking into considerations the parameters/directions issued in Karamjeet Kaur (supra).
Hence, the present writ petition is allowed and the matter is remitted to the respondents to pass a fresh order within 3 months from the date of the order.
(Anil Kshetarpal) Judge April 20, 2021 "DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
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