Central Administrative Tribunal - Delhi
Oa 2914/2 vs Delhi Metro Rail Corporation Through on 21 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 2914/2010
With
OA 2921/2010 AND
OA 2939/2010
New Delhi, this the 21st day of October, 2011
HONBLE MR. G.GEORGE PARACKEN, MEMBER (J)
HONBLE DR. VEENA CHHOTRAY, MEMBER (A)
1. OA 2914/2010
Dina Krushna Barik,
S/o Shri Paramananda Barik,
R/o Qtr. No. 368, Welcome Double Storey,
Seelampur Phase-3, Delhi-53. Applicant.
(By Advocate Shri U. Srivastava)
Versus
1. Delhi Metro Rail Corporation through
its Chairman
Metro Bhawan Fire Brigade Lane
Barakhamba Road, New Delhi.
2. The Deputy CPO/O&M
Delhi Metro Rail Corporation
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi.
3. The AGM/R&T,
Delhi Metro Rail Corporation
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi. Respondents.
(By Advocate Shri Chandan Kumar)
2. OA 2921/2010
Mohd. Nasir S/o Naseeruddin,
R/o F-107 DMRC Staff Qtrs.
Metro Vihar, Najafgarh
New Delhi-43. Applicant.
(By Advocate Shri U. Srivastava)
Versus
1. Delhi Metro Rail Corporation through
its Chairman
Metro Bhawan Fire Brigade Lane
Barakhamba Road, New Delhi.
2. The Deputy CPO/O&M
Delhi Metro Rail Corporation
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi.
3. The AGM/R&T,
Delhi Metro Rail Corporation
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi. Respondents.
(By Advocate Shri Chandan Kumar)
3. OA 2939/2010
Lakhan Prasad Sachin,
S/o Sh. Tapeshwar Yadav,
R/o E-202, Metro Vihar,
Najafgarh, New Delhi-43. Applicant.
(By Advocate Shri U. Srivastava)
Versus
Union of India through
1. Delhi Metro Rail Corporation through
its Chairman
Metro Bhawan Fire Brigade Lane
Barakhamba Road, New Delhi.
2. The Deputy CPO/O&M
Delhi Metro Rail Corporation
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi.
3. The AGM/R&T,
Delhi Metro Rail Corporation
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi. Respondents.
(By Advocate Shri Chandan Kumar)
ORDER
Shri G.George Paracken:
All these cases are identical in nature and, therefore, they are disposed of by this common order.O.A.2914/2010
2. The contention of the applicant in this case is that the respondents have not been considering and finalizing his case for inclusion of his name in the combined panel prepared for Post Code 02 JE/Electrical/DSL Shunter/Tower Wagon Driver, for which the result has been declared on 06.11.2009.
3. The facts of this case are that the applicant was appointed as an Electrician w.e.f. 12.03.2004. Thereafter, he was promoted as Senior Electrician w.e.f. 12.03.2009. Later on, the Respondents have issued Annexure A-1 Notice dated 11.09.2009 regarding formation of a panel for the posts of SC/TO, JE/Electrical, JE/Electronics, JE/Mechanical, JE/Civil & DSL Shunter/Tower Wagon Driver through Limited Departmental Selection (`LDS for short). The applicant has applied for the Post Code 02 JE/Electrical/DSL Shunter/Tower Wagon Driver. After scrutiny of the applications received, the respondents have issued the Annexure A-2 shortlist of eligible candidates. The written test was held on 18.10.2009. Thereafter, the respondents have issued Annexure A-3 list of 43 candidates who qualified for the viva voce test for the posts shown against their names. In the written test as well as viva voce, the Applicant was placed in the provisional panel for the Post Code-02 JE/Electrical/DSL Shunter/Tower Wagon Driver in the scale of Rs.6200-225-9575 IDA (pre-revised)/Rs.13500-25520 (revised) vide Annexure A-4 Office Order dated 06.11.2009. According to the said Office Order, the result of the Applicant and Shri Lakhan Prasad Sachin (Applicant in OA 2939/2010) were purely provisional as they were required to produce proof of validity/recognition from AICCTE/Govt. of the JRN Rajasthan Vidyapeeth University, Udaipur from where they have completed the diploma course. Accordingly, vide his Annexure A-5 letter dated 26.11.2009, he has submitted certain documentary proofs of validity/recognition of the diploma in Electrical Engineering awarded to him. While he was awaiting the response from the respondents, a controversy has arisen regarding the recognition of the diploma awarded by the said University. One Shri Vikash Kumar had filed CWP No. 1405/2009 before Honble High Court of Punjab and Haryana against the Haryana State Pollution Control Board and another seeking a writ of certiorari to quash the order of the Chairman, Haryana State Pollution Control Board according to which the diploma awarded by J.R.N. Rajasthan Vidyapeeth University, Udaipur shall not be accepted and treated as fulfilling the qualification prescribed for Junior Environmental Engineer. The aforesaid writ petition was allowed by the Annexure A-6 judgment dated 13.01.2010. The relevant part of the same judgment is as under:-
7. One thing stands out: the status of the JRN Rajasthan Vidyapeeth as a Deemed University under the UGC Act is not denied. That they had awarded a diploma to the petitioner through the distance education mode is also not in dispute. It is only the validity of such a diploma that is in dispute. The clarification of AICTE that they had not approved weighed with the decision of the Government and that is what is challenged by the petitioner. Learned Senior Counsel, Mr. Malik would contend that a diploma issued by a University or a Deemed University cannot be a subject of approval by AICTE for the only reason that C.W.P. No.1405 of 2009 -6- it does not require any form of approval from AICTE. The AICTE, which has been established under Vikash Kumar vs Haryana State Pollution Control ... on 13 January, 2010 Indian Kanoon - http://indiankanoon.org/doc/1550802/ 2 the All India Council of Technical Education Act, 1987 is, according to him, not entitled to treat itself as an authority either superior or to supervise or control the University and cannot super-impose upon such University, merely by reason that it is imparting technical education. The extent of control by AICTE vis-`-vis the degree or diploma by University or Deemed University came for consideration before the Hon'ble Supreme Court in Bharthidasan University and another Vs. All India Council for Technical Education and other AIR 2001 SC 2861. While reversing the decision of the Madras High Court, the Hon'ble Supreme Court held:
"A careful analysis of the various provisions contained in Sections 10,11 and 22 will further go to show that the role of interaction conferred upon AICTE vis-a-vis Universities is limited to the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it, with no further or direct control over such universities or scope for any direction action except bringing it to the notice of the UGC or other authorities only, of any lapses is carrying out any directions of the AICTE in this regard, for appropriate action. The UGC and universities have always had and C.W.P. No.1405 of 2009 -7- have an accepted and well-merited role of primacy to play in shaping as well as stepping up a co-ordinated development and improvement in the standards of education and research in the sphere of education. When it is only institutions other than universities which are to seek affiliation, it was not correct to the state in the decisions under challenges that an University which cannot grant affiliation to a technical institution, cannot grant the same to itself.
8. The above observation would show that the role of interaction conferred upon AICTE vis-a-vis a University is limited only for the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it. It had no further control over the University or a Deemed University. In other words, the University is, by the very nature of things, autonomous in itself and the credibility of the degrees and diplomas obtain through the standing that it commands with the public. Beyond setting the standards of education, AICTE will have no control. In fact, the AICTE is itself a creature to regulate education institutions generally and not the University. The Hon'ble Supreme Court in the above judgment also held that even while empowering AICTE to do certain things, a special care had been taken to make a specific mention of Universities only to delimit its power in its interaction with Universities and University C.W.P. No.1405 of 2009 -8- Departments as well as its constituent institutions. In the statement of object to the AICTE Act, the evil sought to be curbed was said to be setting up indiscriminately number of private engineering colleges and polytechnics which had diluted the standards. The language employed under the Act for such a purpose through Section 10-K of the Act made a deliberate omission to refer to the University and while it provided for according approval for starting new technical institutions and introduction of new programmes, it referred merely to institutions and did not refer to University or Deemed University. This omission was found by the Hon'ble Supreme Court to be significant and drew a reasoning that a degree or diploma awarded by University would require no approval from AICTE. This judgment was cited and followed in decision of a Division Bench of this Hon'ble Court in Sandeep and others Vs. State of Haryana and others, C.W.P. No.212 of 2004 dated 23.04.2004 where the Division Bench held that a diploma awarded by University did not require approval from All India Council. The Bench was rejecting the contention so advanced by the State.
9. The decision by the State, under the circumstances, to look to the approval from AICTE and finding that such approval was not obtained, to disqualify a person to hold a diploma issued by a Deemed University through distance education mode, is clearly untenable. The impugned proceedings issued by the Chairman, Haryana State Pollution Control Board is quashed and C.W.P. No.1405 of 2009 -9- the respondent is directed to consider the diploma issued by the Deemed University to the petitioner as valid and pass appropriate orders for appointing the petitioner as a Junior Divisional Engineer, if he is qualified and if his candidature is accepted for merit acceptance. Later on, another case, CWP No. 21331 of 2008 Ravinder Jakhar and Ors. Vs. Haryana State Industrial and Infrastructure Development Corporation and Anr. (Annexure A-7) was also decided by the Punjab and Haryana High Court vide its judgment dated 03.03.2010 on the same grounds as in the case of CWP No. 1405/2009 (supra). The relevant part of the said judgment reads as under:-
The issue whether the degree issued by a University established udner an enactment of the Central or the State Legislature would require an approval from AICTE, was considered by the Honble Supreme Court in Bharthidasan University and another Versus All India Council for Technical Education and others AIR 2001 SC 2861, when it held that no such approval was necessary. Again, the contention that a degree awarded to a student who has undertaken the course through the Distant Education mode was not shown to have been approved by the AICTE is a matter that had fallen for consideration before the Distant Education Council through a Joint Committee which accepted the recommendation of the Committee appointed by the Distance Education Council (DEC) for examining the institutions which had pplied for ex-post facto approval. The value of the degrees offered by JRN Rajasthan Vidyapeeth University was considered by me in a decision in Vikash Kumar Versus Haryana State Pollution Control Board and another in Civil Writ Petition No.1405 of 2009, dated 13.01.2010. The same point ws also decided in subsequent decision in Vipin Kuman Versus Haryana Vidyut Parsaran Nigam Limited, Shakti Bhawan and others in Civil Writ Petition No.575 of 2009, dated 04.02.2010. the point that falls for consideration in this case is the very same issue as what I have decided in the above said two cases.
4. The applicant has also, therefore, made the Annexure A-9 representation dated 30.03.2010 followed by the Annexure A-10 reminder dated 09.07.2010 to consider his case as the degree/diplomas awarded by the JRN Rajasthan Vidyapeeth University and IASE University are recognized by Govt. of India, Ministry of Human Resource Development.
5. The respondent have filed the reply stating that the applicant himself has admitted that he has obtained the diploma through correspondence from JRN Rajasthan Vidyapeeth University, Pratap Nagar, Udaipur. They have also submitted that the diploma awarded to him is not recognized by the DEC and as such he does not possess the required qualification.
6. The applicant has filed a rejoinder enclosing therewith a copy of the order of a co-ordinate Bench of this Tribunal in OA 1210/2010 Shri Vikrant Shokhanda Vs. Delhi Metro Rail Corporation Ltd. The applicant therein has filed the OA seeking direction to the respondents to consider him for appointment to the post of Station Controller/Train Operator in the DMRC. The applicant in the said OA had obtained a certificate of diploma in Mechanical Engineering from the Institute of Advanced Studies in Education having the status of deemed University called Gandhi Vidya Mandir, Sardarshahr. He had also passed the requisite tests and was declared successful. But he was not appointed without assigning any reason. According to the respondents in the said case, Institute was recognized by them but the specific programmes relating to diploma course in Mechanical Engineering run by them did not have their approval. However, this Tribunal held that the programmes run by IASE which had the status of deemed university got post-facto approval of DEC for all its programmes till 2005 and ad hoc approval was also given for the programmes upto 2007-2008. Accordingly, the OA was allowed and the respondents were directed to accept the diploma certificate furnished by the applicant as appropriate one and to consider him for appointment subject to his medical fitness and other requirements of the respondent organization. The relevant part of the said order is as under:
6. The learned counsel for the applicant placed before us the letter dated 30.04.2010 of IASE (Annexure-R/5) in which it was clarified that this Institute had been declared as a Deemed University under Section-3 of the UGC Act, 1956 vide Notification dated 25.06.2002 of the government as well as the Notification of the UGC issued on 17.07.2002. Under Section 22(1) of the Act, the Institute had the right to confer degrees on students successfully completing courses run by the Institute. A joint Committee, which was constituted with Members of UGC, AICTE and DEC dealt with the subject of post facto approval including the case of IASE and in its meeting held on 07.08.2007 approved the distance education programme of IASE and others. The programmes run by them had the specific approval of its statutory body, namely, Academic Council. The UGC in its letter dated 13.11.2007 stated that no further approval from UGC was required. DEC is the competent authority to recognize institutions running the distance education programme and they have specifically mentioned that IASE was given post facto approval to all programmes that were approved by the statutory bodies of the Institute till 2005. The relevant portion of the same letter dated 05.03.2010 relied on by the respondent is extracted below:-
You may note that Distance Education Council (DEC) has accorded post-facto approval to IASE Deemed University, Sardarshar and JRN Rajasthan Vidyapeeth Udaipur to all programmes (that were approved by Statutory bodies of the Institute) till 2005. The above universities have also been accorded provisional recognition for one academic year 2007-08. No further approval has been accorded to IASE Deemed University as yet by the DEC. The provisional recognition accorded to the JRN Rajasthan Vidyapeeth Deemed University has been extended till the visit of the Expert Committee and decision is taken by the Joint Committee of UGC-AICTE-DEC. It states in clear terms that all the programmes which were approved by the statutory bodies of the Institute till 2005 got the post-factor approval of DEC.
6.1 A specific clarification was given by Indira Gandhi National Open University in its letter dated 29.08.2007 (Annexure A-13 Colly. P.72), relevant extracts of this letter are reproduced below:-
This has reference to your application requesting for one limit ex-post-facto recognition for programmes offered under distance mode.
In connection with ex-post-facto recognition, we would like to convey that all programmes (that were approved by the statutory bodies of your Institute) are approved till date. As you have not been offering education through distance mode since 2005, all your programmes (approved by the statutory bodies of your Institute) till 2005 happen to be approved by the DEC. The Ministry of Human Resource Development in its letter dated 12.02.2010 (Annexure A-14 p. 76) makes the following observations:-
I refer to your application dated 20.01.2010 on the above noted subject and state that the degrees/diploma already awarded by the IASE, Sardarshahr, Churu, Rajasthan are recognized by the purpose of employment under the Central Government.:
6.2 Besides, IASE in its letter dated 22.12.2009, Annexure A-11 (page-39) has clarified that all the programmes run by the Deemed University under distance mode were given ex-post-facto approval till the academic year 2007-2008 by the Joint Committee consisting of representatives of UGC, DEC and AICTE in its meeting held on 07.08.2007. The minutes of Joint Committee meeting (pages 44-45) support this contention.
7. The applicant had got the diploma certificate in Mechanical Engineering in the month of June 2005. In other words, the programmes run by IASE which had the status of Deemed University got post-facto approval of DEC for all its programmes till 2005 and ad hoc approval was also given for the programmes upto 2007-2008. This position is borne out from the foregoing discussions. Therefore the contention of the applicant that he had a valid diploma from a recognized Institute stand vindicated and we do not see any justification to sustain the objection of the respondents in this regard.
8. In the circumstances, our findings are that the diploma certificate from IASE obtained by the applicant in the year 2005 was a valid one and the Institute from which the applicant passed out had the status of Deemed University having the powers of running programmes in Distance Education mode for which it had post-facto approval from the DEC in respect of the relevant period.
9. In the result, the OA is allowed. The respondent authorities are directed to accept the diploma certificate furnished by the applicant as an appropriate one and consider him for appointment subject to his medical fitness and other requirements of the respondent organization. No costs.
7. Thereafter, another co-ordinate Bench of this Tribunal in OA 2917/2010 Shri Shashikant Vs. Union of India and Ors. has also followed the aforesaid orders of this Tribunal and allowed the OA. The relevant part of the said judgment is as under:
8. We find that the issue has been examined in great detail in OA-1210/2010 and also in RA-66/2011. After examining all the materials including those on which reliance is being placed in the present O.A., it has been held that the subject of approval to the courses for diploma in Electrical Engineering run by IASE was examined by a Joint Committee of representatives of UGC, DEC and AICTE in its meeting held on 07.08.2007 and the programmes run by the Institute from 2005 to 2007-08 were specifically approved. It had also discussed the judgments of the Honble High court of Punjab & Haryana in the case Vikash Kumar Vs. Haryana State Pollution Control Board and another, (CWP-1405/2009) decided on 13.01.2010 of the Honble High Court of Himachal Pradesh in the case Sudesh Kumari and others Vs. HPSEB, (CWP-3206/2010) decided on 05.04.2011 and came to the conclusion that the diploma awarded by IASE of Gandhi Vidya Mandir, Sardarshahr, Rajasthan, a deemed University, was a valid one. Since the facts are the same, we do not find that any case has been made out to distinguish the order of the Co-ordinate Bench in the aforesaid cases. As regards the submission of the respondents that the letter dated 30.04.2010 of IASE makes an admission that the course was not approved by DEC, we find that full facts of the case including the approval granted by the Joint Committee on 07.08.2007, the letter of UGC dated 13.11.2007 stating that in view of the approval of the Joint Committee there was no necessity for taking the approval from UGC, the letter of AICTE dated 04.10.2007 stating that degrees/diplomas obtained through Distance mode and approved by DEC did not require AICTE approval and all other relevant documents cited in that letter were in support of the contention that the programme had the approval of DEC and other authorities. Therefore, it was wrong to state that IASE letter conveyed a meaning which was altogether different.
9. In view of the foregoing discussion, we do not find any justification to disagree with the reasoning made by this Tribunal in OA-1210/2010 and RA-66/2011. In the result, the O.A. is allowed. The respondents are directed to consider the applicant for appointment on the post of SC/TO if he otherwise qualifies for it after completion of medical examination and other formalities. The delay in offering him appointment is not attributable to the applicant. Therefore, he should be given seniority on the basis of his position in the merit list published by the respondents in connection with selection of candidates for that post. However, the applicant will not be entitled to any salary until he is appointed on the post and discharges the responsibilities of that post. No costs. OA 2921/2010
8. This O.A. is exactly similar to that of OA 2914/2010.
OA 2939/20109. The only difference in this case is that the applicant had obtained diploma through correspondence/Distance Education Programme of JRN Rajasthan Vidyapeeth University.
10. We have heard the learned counsel for the applicants Shri U. Srivastava and the learned counsel for the respondents Shri Chandan Kumar. It is seen that the controversy is regarding the recognition of the certificate issued by the JRN Rajasthan Vidyapeeth University and IASE University. The issue involved in these OAs has already been considered by the Honble High Court of Punjab and Haryana in CWP 1405/2009 (supra) and CWP No.21331 of 2008 (supra) and decisions of the Coordinate Benches of this Tribunal in OA-1210/2010 (supra) and OA-2917/2010 (supra).
11. In view of the above position, we allow the these Original Applications. The respondents are directed to consider and finalize the case of the applicant in OA 2914/2010 for appointment to the post of ALTO JE (Electrical) and the applicant in OA 2921/2010 for the post of SC/TO and the applicant in OA 2934/2010 for the post of JE Electrical. They shall be appointed to the aforesaid post, if they are otherwise found suitable. If they are appointed, they shall also be given seniority on the basis of their respective positions in the merit list prepared by the respondents. However, they will not be entitled for any backwages. No costs.
(Dr. Veena Chhotray) (G.George Paracken)
Member(A) Member(J)
`SRD