Rajasthan High Court - Jaipur
Narendra Kumar Kumawat vs State(Medical And Health Dep)Ors on 27 March, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.3407/2012 Narendra Kumar Kumawat Versus State of Rajasthan and others Date of Order :: 27th of March, 2012 PRESENT HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Kuldeep Aswal for petitioner. <><><> By the Court:
The respondents issued an advertisement for selection to the post of Assistant Radiographer. The petitioner appeared in the selection and despite merit position, he has been denied appointment, which is precisely for want of required qualification.
Learned counsel for petitioner submits that qualification as required under the rules has been taken by the petitioner from a deemed to be university under Section 3 of the University Grants Commission Act (for short 'the UGC Act'). A copy of the mark sheet at Annexure-1 has been enclosed. The said institution was declared deemed to be university vide notification dated 17.7.2002 followed by ex-post facto approval of the course vide order dated 29.8.2007 by the Indra Gandhi National Open University. Despite the recognition of the institution and even the order issued by the Government of India dated 12.2.2010 at Annexure-5, page 39 of the writ petition, denial of appointment to petitioner becomes illegal.
I have considered the submissions made by learned counsel for petitioner and perused the record carefully.
From perusal of document at Annexure-1, it comes out that petitioner obtained qualification of Diploma in Radio Imaging Technology in the month of November 2009. If the letter of recognition dated 29.8.2007 is looked into, ex-post facto recognition was given till 2005. For further recognition of the institution, an application was required to be made in a prescribed format.
Learned counsel for petitioner failed to show that for the year 2008-2009, the institution submitted application for recognition by a competent body. The letter dated 7.5.2007 provides for an application for provisional recognition, but there is nothing on record to show that application followed by recognition was given by the Indra Gandhi National Open University because after 2007 there is no order on record to show recognition of the course/institution. The document at Annexure-5 provides for provisional recognition provided application for permanent recognition is submitted.
So far as the letter issued by the Government of India dated 12.2.2010 is concerned, it is regarding employment under the Central Government and not under the State Government, thus same cannot be applied to the service of the State.
The fact which needs further consideration is as to whether deemed university can award diploma course of the nature involved therein. For that purpose, Section 22 of the UGC Act is quoted thus:-
22. (1) 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.
(2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree.
(3) For the purposes of this section, degree means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the official Gazette.
Perusal of Section 22 shows as to who can confer/grant degree and what is the definition of degree. Section 22(3) of the UGC Act provides definition of degree which means course as notified by the Commission in the gazette with the approval of Government of India. There is nothing on record to show that Diploma in Radio Imaging Technology was ever notified in the gazette to fall in the definition of the degree. A deemed university cannot grant degrees which are not notified in the gazette. Looking to the aforesaid aspect also, mere grant of diploma course by the deemed to be university cannot get significance as qualification is not notified to fall in the definition of degree. If the Government of India has recognized qualification given by deemed to be university without referring to particular course then it is upto them and in any case order issued by the Government of India cannot create right if it is in ignorance to Section 22 of UGC Act. A radiographer is to work and assist for the treatment of the patient. There is nothing on record to show that practical training was imparted by the hospital attached to the institution. If the qualification obtained by the petitioner is accepted, then it would be at the cost of patient. This is more so when course obtained by the petitioner does not fall in the definition of degree, hence deemed to be university had no authority to grant course in violation of Section 22 of the U.G.C. Act. The fact further remains that Indra Gandhi National Open University has given ex-post facto approval to the course upto the year 2005 and order for that purpose has been issued in the year 2007 without showing as to on what basis ex-post facto approval has been given.
This court while deciding the controversy in regard to the appointment to the post of Lab Technician has elaborately discussed the role of DCE/ Indra Gandhi National Open University in the case of Lohade Ram Meena Versus State of Rajasthan and others SBCWP No.226/2009 decided on 30.3.2012. Therein it was found that ex-post facto approval was given to the institutions which were having deficiencies and there was nothing to show as to how those deficiencies were removed retrospectively. Without commenting much on the role of the DEC/ Indra Gandhi National Open University, I am of the opinion that petitioner is not having required qualification as it is not from a recognized institution, thus denial of the appointment to a candidate not possessing required qualification cannot be said to be illegal. The writ petition is found to be devoid of merit, hence, dismissed. This disposes of stay application also.
(M.N. BHANDARI), J.
Sunil/PA All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A