Madhya Pradesh High Court
Manish Sonkar vs The State Of Madhya Pradesh on 11 November, 2010
1
W.A.No.1198/10
Manish Sonkar State of M.P. & others
11.11.2010
Shri Sujoy Paul, learned counsel for petitioner.
Shri Vivek Agrawal, Govt. Advocate for respondents.
This appeal is directed against an order dated 8.4.2010 in Writ
Petition No.3717/10(s) by which learned Single Judge of this Court
dismissed the writ petition filed by the petitioner.
Facts of the case are that petitioner was a candidate in the
Patwari selection process but his candidature was rejected on the ground that Post Graduate Diploma in Computer Application obtained by the petitioner was conferred by the Rajiv Gandhi Saksharta Mission, an institute affiliated to the Maharishi Mahesh Yogi Vedic Vishwavidyalaya was not approved by the Government. It was argued before the learned Single Judge that the certificate issued by the institute was recognized for appearing in the examination. It was also argued before the learned Single Judge that the minimum qualification prescribed is Higher Secondary pass with 10+2 pattern and qualification of Diploma in Computer Application or Post Graduate Diploma in Computer Application is only an additional and not an essential qualification.
Learned Single Judge relying on decision of the Division Bench in Ajay Awasthy Vs. State of M.P. In W.P.No.8802/2009 dated 5.10.2009 dismissed the writ petition by holding that certificate in question was issued by the Rajiv Gandhi Saksharta Mission, it was not issued by the University concerned, and therefore the aforesaid certificate was rightly not accepted by the respondents and the petitioner's candidature was rightly rejected. So far as contention of the petitioner that requirement of aforesaid qualification was an additional and not essential, it was also turned down.
Learned counsel appearing for the appellant reiterated the same contentions which were raised before the learned single judge.
2 W.A.No.1198/10Manish Sonkar State of M.P. & others 11.11.2010
Shri Vivek Agrawal, learned GA submitted that in Reenu Yadav & others Vs. State of M.P. & others in W.P.No.9066/09, the similar controversy was considered and decided by the Division Bench of this Court and this appeal is without merit and may be dismissed.
In Reenu Yadav (supra), the Division Bench of this Court considering the controversy held thus:-
26. T he present controvers y is to be tested on the anvil of the aforesaid pronouncement of law. T he question that emanates for consideration is whether the letter-circular in effect runs counter to the Rule and whether it travels beyond the stipulations in the advertisement. Before we delve into factual scenario in this contextual set up and the submissions proponed by the learned counsel for the parties, we think it apposite to notice a few decisions in the field.
In Union of India and ors. Vs. Sh. Somasundaram Visw anath and Ors. AIR 1988 SC 2255 , it has been held as follows :
"6....................If there is a conflict between the executive instructions and the rules made under the proviso to Art.
309 of the Constitution of India, the rules made under proviso to Art.309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Art. 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails..............."
27. In Senior Supdt. Of Post Office and Ors Vs. Izhar Hussain, AIR 1989 SC 2262, a t wo- Judge bench of the Apex Court has stated thus:
"..............A statutory rule cannot be modified or amended by executive instructions. A valid rule having some lacuna or gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions 3 W.A.No.1198/10 Manish Sonkar State of M.P. & others 11.11.2010 can only supplement and not supplant the rule."
28. In Ram Dayal Prajapati Vs. State of M.P. and ors. AIR 2003 MP 171, it has been held as under:
"14. In the case of Additional District Magistrate (Rev.) Delhi Admn. Vs. Shri Ram AIR 2000 SC 2143 it has been stated that it is a well recognized principle of statute that conferment of rule making power by an Act does not enable the rule making authority to make rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.
15. in the case of Agricultural Market Committee Vs. Shalimar Chemic al Works Ltd. AIR 1997 SC 2502 it was laid down that if a delegated legislation creates a legal fiction which is beyond the scope of principal Act the same has to be regarded as ultra vires."
29. T he submission of Mr. Shukla, learned counsel for the petitioners is that the Rule 1.8 basically stipulated a certificate of one year diploma from an institute and the advertisement also stipulated accordingly. Clause 1.8 of Chapter I of the advertisement has been pressed into service. T he same being translated into English reads as follows:
"1.8 Educational qualifications - Passing of Higher Secondary or High School (10+2) is necessary. In addition, `O' Level Certification from DOEACC/IETE or one year Diploma in Computer Application (DCA) from an institute run by a registered/ recognized/affiliated with the University recognized by the UGC or higher education in computer."
30. From the aforesaid it is perceptible that what has been really stipulated is that a candidate must have one year Diploma in Computer Application (DCA) from an institute affiliated/registered/recognised by a Universit y which is recognised by the Universit y Grants Commission. T he letter-circular provides that the 4 W.A.No.1198/10 Manish Sonkar State of M.P. & others 11.11.2010 certificate issued by a University containing seal and signature would be valid. T he certificate issued by the institute on its own seal and signature of its authority is not to be accepted. The submission of Mr. Deepak Awasthi and Mr. Avinash Zargar is that the Rule and the advertisement are absolutely clear that the diploma course should be from an institute run by a recognized/ registered/affiliated by a Universit y which is recognized by the University Grants Commission. It is their stand that it is the Universit y which issues a degree or diploma. In this context we may refer with profit to Section 6 of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 which deals wit h the powers of the Universit y. Sub-Section (9) empowers the Universit y to institute degrees, diplomas, certificates and other academic distinctions. Sub-Section (10) empowers the Universit y to confer degrees and other academic distinctions on the basis of examinations, evaluation or any other method of testing. Sub- Section (12) confers power on the University to withdraw degrees, diplomas, certificates and other academic distinctions for good and sufficient reasons. T hus, from the said provision it is clear crystal that it is the University which confers diplomas, degrees, certificates and other academic distinctions.
31. Be it noted, many of the candidates had produced certificates from the institutes run under the Maharshi Mahesh Yogi Vedic Vishwavidyalaya Adhiniyam, 1995 which is an Act to establish and incorporate a University in the State of Madhya Pradesh and to provide for education and prosecution of research in Vedic learnings and practice and to provide for matters connected therewith or incidental thereto. The University as has been defined under the Act means the Maharshi Mahesh Yogi Vedic University established under this Act. Section 4 of the Act deals with powers of the Universit y. Sub- section 4 (I) (a) of Section 4 read as under:
" 4 (i) (a) grant, subject to such conditions a the University may determine, diplomas or certificates and confer degrees or other academic distinctions on the basis of examination, evaluation or any other method of testing on, persons and withdraw any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause;"5 W.A.No.1198/10
Manish Sonkar State of M.P. & others
11.11.2010
Section 2(l) defines `institution'. It reads as under:
"Institution" means an academic institution, not being a college, maintained by the University. "
Section 2(o) defines `recognised institution' which is as under:
"Recognised institution" means an institution of higher learning recognised by the University. "
32. T hus, it is evincible that Section 4 of the Act deals with powers of the University. Sub-section (vi) empowers the University to establish and maintain colleges, institutions and Halls. T he institutions are established by the Universit y but the diplomas are eventually conferred by the University itself. W hat is required by the letter-circular is to produce diplomas or certificates with the seal of the Universit y and with the signature of the competent authorit y of the University. Hence, there is no change in the terms incorporated in the advertisement. It does not remotely transgress the stipulation in the Rule. W hat the letter-circular postulates is only the method how the certificate is to be produced as per law. It is in accord with the Rule and the advertisement. Therefore, we are unable to accept the spacious submissions raised by the learned counsel for the petitioners that the same transgresses the Rule or the advertisement.
As controversy raised in this case has been decided by the Division Bench in Reenu Yadav (supra) and we do not find any reason to take a different view, this appeal is found without merit and accordingly is dismissed in the light of the judgment in Reenu Yadav (supra).
No order as to costs.
(Krishn Kumar Lahoti) (Smt.Sushma Shrivastava)
C. Judge Judge