Central Administrative Tribunal - Delhi
Narender Kumar Sharma vs New Delhi Municipal Council on 13 March, 2013
Central Administrative Tribunal Principal Bench, New Delhi R.A.No.2/2013 in O.A.No.774/2012 Order reserved on 8th March 2013 Order pronounced on 14th March 2013 Honble Shri Sudhir Kumar, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Narender Kumar Sharma s/o Kishan Sarup Sharma r/o 49/II, Lal Bahadur Sadan Gole Market, New Delhi-1 ..Applicant (By Advocate: Ms. Tamali Wad) Versus New Delhi Municipal Council Through its Secretary Palika Kendra Sansad Marg New Delhi-1 ..Respondent (By Advocate: Shri Arun Bhardwaj) O R D E R
Shri A.K. Bhardwaj:
By way of the present R.A. filed under Section 22 (f) of Administrative Tribunals Act, 1985, applicant has sought review of our order dated 27.11.2012 passed in O.A.No.774/2012 saliently on the following grounds:
in taking the view that by communications dated 14.3.1997, 30.6.1999 and 25.10.2011 issued by the University Grants Commission (UGC) regulation (2) of UGC Regulations 1985 could not be overridden, this Tribunal overlooked Regulation 7 of the said Regulations, i.e., the UGC shall have the right to grant relaxation to a University in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the regulations on the merit of each case, the respondent-NDMC never questioned the authenticity of communications dated 14.3.1997, 30.6.1999 and 25.10.2011issued by the UGC, in the absence of UGC being party before it, this Tribunal could not have examined its authority to exercise power under Regulation 7 to grant relaxation to a University in regard to the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the regulations on the merit of each case; and this Tribunal misunderstood the judgment of Honble Supreme Court in Annamalai University represented by Registrar v. Secretary to Government, Information & Tourism Department & others, (2009) 4 SCC 590. In the said case, the Apex Court only dealt with the question, whether DEC had the requisite jurisdiction to grant ex post facto approval to the M.A. degree in Open University System in an examination held by the Annamalai University when no approval had been granted by the UGC.
2. In the reply filed on behalf of the respondent-NDMC on 20.2.2013, it is pleaded that the power of the UGC was not an issue in this case and the main issue was whether the degree granted by the aforesaid University in one year sitting is equivalent to three years B.A. course.
3. We have heard the learned counsel for the parties and perused the records.
4. As has been noticed by the Honble Supreme Court in Annamalai University represented by Registrars case (supra), the UGC Act comes within the purview of Entry 66 of List I of the Seventh Schedule to the Constitution of India. It was enacted to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a UGC. The UGC was established by the Central Government in terms of Section 4 of the UGC Act. Powers and functions of the Commission have been laid down in Chapter III thereof. Section 12 of the Act provides for functions of the Commission, such as the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and coordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. For the purpose of performing its functions under the Act, the Commission may recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendations and require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning. In terms of Section 22 (1) of the Act, the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees.
5. In paragraph 56 of the aforesaid judgment, the Apex Court ruled that the grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non compliance thereof would entail its consequences. The power of relaxation conferred on UGC being in regard the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the regulation on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. Paragraph 56 of the said judgment reads as under:-
56. Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non compliance thereof would entail its consequences. The power of relaxation conferred on UGC being in regard the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the regulation on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If mandatory provisions of the statute have not been complied with, the law will take its own course. The consequences will ensue.
6. In the said judgment, the Apex Court also viewed that relaxation cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an Administrative Authority, it would be void. Such a void order cannot be validated by inaction. Paragraph 57 of the said judgment reads as under:-
57. Relaxation, in our opinion, furthermore cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an Administrative Authority, it would be void. Such a void order cannot be validated by inaction.
7. In paragraph 58 of the said judgment, it has been ruled that when mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect. Paragraph 58 reads as under:-
58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant - University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5.5.2004 that the appellant - University had no jurisdiction to confer such degrees, in our opinion, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of UGC ACT. When mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect.
8. In Regulation 2 of the Regulations published on 25.11.1985, it is specifically stipulated that no student shall be eligible for the award of the first degree unless he has successfully completed a three year course. The Apex Court specifically ruled that when mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect.
9. Admittedly, the applicant got one year degree from Usmania University in the year 1986 as an external candidate. On said date, the 1985 Regulation was in operation. In the detailed impugned order No. SO (E)/1507/SA-I dated 8.3.2011, the Director (P), NDMC specifically recorded that he could not find any such decision of the Commission to grant recognition to one sitting degree and no document can be relied upon if it runs contrary to the law laid down by the Honble Supreme Court. In the said order, it has also been reflected that the matter could be looked into again based on clarifications, if any, received from the said Institution. In the order under review, it was specifically observed that it is open to the respondent to take action as per its said stand. Once the authorities in NDMC could view that here was no material to persuade them to arrive at a conclusion that the one year degree obtained from Usmania University in the year 1986 was acknowledged by the Commission as a valid degree, it could not be possible for us to arrive at a different conclusion, particularly when no minutes of the meeting or resolution of the Commission were produced before us to show that in exercise of the powers under Regulation 7, the one year degree of the applicant could be treated as valid. Beside, whether the degree could be treated as valid only for the purpose of further studies or also for the purpose of promotion/ appointment to the post of Assistant Labour Welfare Officer in NDMC is again an independent question. The communications dated 14.3.1997, 30.6.1999 and 25.10.2011 relied upon by the applicant in support of his contention that his degree from Usmania University is valid degree has been specifically noticed in the impugned order, relevant excerpt of which reads as under:-
Subsequently, Sh. Narender Kumar Sharma submitted another representation dated 18.05.2010 requesting therein to consider his candidature for the post of Asstt. Labour Welfare Officer and had drawn the attention of the authorities towards the office order No.F.11/4/92(CPP-II) dated 24.04.1996, 14.03.97 and 30.06.99 issued by the Addl. Secretary, UGC wherein it is clearly stated that one sitting first degree/Bachelor degree programme from a recognized university upto the year 1995-96 and 1998-99 have been treated as valid by the Commission and cannot be ignored for purpose of promotion.
The case was again sent to ASC for advice. The ASC vide her note dated 01.09.2010 reiterated her opinion stating It appears that the concerned person, Sh. N.K. Sharma has given a representation based on O.O. dated 24.4.96 etc. to contend that once sitting Degree/Bachelor Degree from Recognized University upto 1995096 & 1998-99. I have gone through the Office Order. I do not find any such decision of the Commission to grant recognition to one-sitting degree. Moreover, no document can be relied upon, if it runs contrary to the law laid down by the Supreme Court.
xx xx xx xx xx Accordingly, the case of the applicant regarding eligibility for appointment to the post of Asstt. Labour Welfare Officer was considered by the competent authority and it has been decided that Sh. Narender Kumar Sharma, Asstt. Labour Welfare Supervisor is not entitled for promotion to the post of Asstt. Labour Welfare Officer as he does not possess a valid Bachelors degree as per Recruitment Rules.
The above decision of the Competent Authority is, however, without prejudice to the reference for clarification/ascertaining exact position sent to the University Grants Commission and the Osmania University and the matter can be looked into again based on the clarification, if any received, from the said institutions.
10. After taking note of said decision wherein the Director (P), NDMC could not find any decision of the Commission granting recognition to one sitting degree, we could not have taken a contrary view, as no decision of the commission under regulation 7 (ibid) was produced before us. Even with the present R.A. also, the applicant could not produce any decision of UGC relaxing Regulation 2 of the 1985 Regulations. After the Right to Information Act, 2005 came into force, applicant could have very much obtained the decision of the Commission under Regulation 7 (ibid), if any, relaxing Regulation 2 and recognizing his degree as valid degree, as mentioned in letters relied upon by him heavily.
11. We have also no hesitation in making it clear that it was not possible for us to rely upon typed copies of certain purported letters without knowing the context in which they were written. The UGC being not party before us, we felt handicapped in calling for any record from them. At the time of hearing of the present R.A., we had specifically put to the counsel for the parties whether they propose to move any application under Section 22 of Administrative Tribunals Act, 1985 for appropriate orders to enable this Tribunal to verify the factual position. Their response to our question was in negative.
12. In the circumstances, we do not find any force in the contention of the applicant that since in exercise of its power Regulation 7 (ibid) Regulation 2 of the Regulations could be relaxed by UGC, we should have accepted the contents of DO letters communications dated 14.3.1997, 30.6.1999 and 25.10.2011 as outcome of such power.
13. Maybe the NDMC had not questioned the power of UGC to relax Regulation 2 (ibid), so we are, but at the same time, no decision / resolution of the Commission to this effect could be produced before us. In view of the specific findings in the impugned order passed by the Director (P), NDMC after taking note of the DO letters relied upon by the applicant, i.e., he did not find any decision of the Commission, it is not possible for us to take a view that a decision to the effect mentioned in purported DO letters, typed copies of which are placed on record, has been taken. In paragraph 11 of the R.A., it is pleaded that the power under Regulation7 has been exercised by writing DO letters dated 14.3.1997, 30.6.1999 and 25.10.2011. We are afraid that the power to relax the Regulation cannot be exercised by way of the DO letters. Such a decision can be taken by following the mechanism prescribed for the purpose. Even the contents of DO letters do not suggest that those are relaxing the Regulation 2 (ibid). The letters suggest some previous decisions of the Commission. What the applicant needed to do was to produce a copy of such decision, if any, which he failed to produce. We have committed no error in appreciating the judgment of the Apex Court in Annamalai University represented by Registrars case (supra). We have correctly followed the said judgment in paragraph 58 of which, it is categorically viewed that invalid Act cannot be validated retrospectively. However, it is settled position of law by specifically mentioning therein, an administrative decision may be given retrospective effect. But in order to substantiate his contention that his one year degree was the valid degree, what the applicant needed to do was to produce the copy of the resolution/ decision of the Commission recognizing his degree issued by the Usmania University as valid degree. Beside it is settled position of law that after a judgment is delivered, the concerned court becomes functous officio. It is not open for the court to re-write its judgment. The provision of review is an exception to said general rule. The R.A. cannot be heard as an appeal in disguise. Even an erroneous order also does not come within the scope of review. It is only an error apparent on the face of record, which empowers the court to review its order. In the present case, the applicant is unable to point out any apparent error in our order, he is unable to produce any new material to persuade us to exercise power of review. He has also not put forth any other ground to satisfy us that our order passed in O.A. needs to be reviewed.
14. In order to secure ends of justice, we have already left it open to the respondents to take a final view in the matter as mentioned in their order dated 8.3.2011. Accordingly, to bring an end to any impression in the mind of the applicant that he is not meted out justice, we direct respondent-NDMC to take up the matter with UGC and find out whether any decision mentioned in communications dated 14.3.1997, 30.6.1999 and 25.10.2011 has been taken. If the Corporation is satisfied that such decision has been taken and it fulfills the requirement of Regulation 7 (ibid) to the effect that the degree obtained by the applicant has to be treated as valid, keeping in view the requirement of the post of Assistant Labour Welfare Officer, it may take a view regarding eligibility of the applicant. We also make it clear that our order passed in the O.A. may not be construed to have any adverse effect on such benefits already granted to the applicant on the basis of the degree in question.
15. Subject to aforementioned directions, R.A. stands disposed of. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/