Rajasthan High Court - Jaipur
Avnish Tayal S/O Shri Dinesh Chand Tayal vs The State Of Rajasthan on 6 March, 2019
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 87/2019
In
S.B. Civil Writ Petition No.7635/2015
1. Avnish Tayal S/o Shri Dinesh Chand Tayal, Aged About 46
Years, Resident Of F-19, Chandra Vardai Nagar, Ajmer At
Present A.en. Zila Parishad, Ajmer.
2. Nisha Agrawal D/o Shri Bal Mukund Agrawal, Aged About
33 Years, Resident Of B-202, Padmawati Apartment, New
Navratan Complex, Bhuwana, Udaipur.
3. Vinod Kumar Upadhayay S/o Shri Sitaram Sharma, Aged
About 45 Years, Resident Of Village And Post Naroli Dang,
Tehsil Sapotra, Distt. Karauli At Present A.en. Zila
Parishad (Drda), Jaipur.
4. Anil Kumar Shukla S/o Shri Ved Prakash Shukla, Aged
About 44 Years, Resident Of 938, Shanti Nagar, Near
Durgapura Railway Station, Jaipur At Present A.en.
Panchayat Samiti, Saganer, Jaipur
----Appellants
Versus
1. The State Of Rajasthan, Through Principal Secretary,
Rural Development And Panchayati Raj Department,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Additional Commissioner, Rural Development And
Panchayati Raj Department, Jaipur
3. All India Council For Technical Education, Through Its
Secretary, I.g. Sports Complex, I.p. Estate, New Delhi-2.
4. University Grants Commission, Through Its Secretary,
Bhahadur Shah Zafar Marg, New Delhi-2.
5. Janardan Rai Nagar Rajasthan Vidyapeeth Deemed
University, Udaipur Through Its Registrar
----Respondents
For Appellant(s) : Shri Brighu Sharma with Shri Akarsh Mathur For Respondent(s) : Dr. Ganesh Parihar, AAG, Shri Vinod Kumar Gupta and Shri Neeraj Batra (Downloaded on 30/06/2019 at 01:40:43 AM) (2 of 10) [SAW-87/2019] HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Order 06/03/2019 This appeal is directed against the judgement of the learned Single Judge dated 24.10.2018, whereby the writ petition filed by the petitioners has been dismissed by the learned Single Judge, relying on the judgement of the Apex Court in Orissa Lift Irrigation Corporation Ltd. vs. Rabi Sankar Patro & Ors.-(2018) 1 SCC 468.
Appellants-petitioners, who are four in number, approached the learned Single Judge inter alia with the prayer that the respondents be directed not to de-recognise their degree obtained from Distance Education Mode and also be further directed not to revert them from the post of Assistant Engineer to that of Junior Engineer. It was further prayed that a direction be issued to the respondents to provide them all service benefits regarding promotions and other incentives by treating them as degree holder Engineers. The learned Single Judge has in the impugned judgement reproduced para 53 of the judgement of the Supreme Court in Orissa Lift Irrigation Corporation Ltd., supra, which reads as under:
"53. Accordingly we direct:
I 1994 AICTE Regulations, do apply to Deemed to be Universities and the Deemed to be Universities in the present matter were not justified in introducing any new courses in Technical Education without the approval of AICTE. II Insofar as candidates enrolled during the Academic Sessions 2001-2005, in the present case the ex post facto approvals granted by UGC and their concerned authorities are set aside.(Downloaded on 30/06/2019 at 01:40:43 AM)
(3 of 10) [SAW-87/2019] III Consequent to aforesaid direction No.II, all the degrees in Engineering awarded by concerned Deemed to be Universities stand suspended.
(2016) 7 SCC 353 - Paras 86 to 92, 108 to 111 (2016) 6 SCC 335 IV The AICTE shall devise the modalities to conduct an appropriate test/tests as indicated in Para 47 above. The option be given to the concerned students whose degrees stand suspended by 15.01.2018 to appear at the test/tests to be conducted in accordance with the directions in Para 47 above. Students be given not more than two chances to clear test/tests and if they do not successfully clear the test/tests within the stipulated time, their degrees shall stand cancelled and all the advantages shall stand withdrawn as stated in Paras 46 and 47 above. The entire expenditure for conducting the test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018.
V Those students who do not wish to exercise the option, shall be refunded entire money deposited by them towards tuition fee and other charges within one month of the exercise of such option. Needless to say their degrees shall stand cancelled and all advantages/benefits shall stand withdrawn as mentioned in Para 47. VI If the students clear the test/tests within the stipulated time, all the advantages/benefits shall be restored to them and their degrees will stand revived fully.
VII As regards students who were admitted after the Academic Sessions 2001-2005, their degrees in Engineering awarded by the concerned Deemed to be Universities through distance education mode stand recalled and be treated as cancelled. All benefits secured by such candidates shall stand withdrawn as indicated in Para 48 above. However, the entire amount paid by such students to the concerned Deemed to be Universities towards tuition fees and other expenditure shall be returned by the concerned Deemed to be Universities by 31.05.2018, as indicated in Para 48. VIII By 31.05.2018 all the concerned Deemed to be Universities shall refund the sums indicated above in VII and an appropriate affidavit to that extent shall be filed with UGC within a week thereafter.
IX We direct the CBI to carry out thorough investigation into the conduct of the concerned officials who dealt with the matters and went about the granting permissions against the policy statement, as indicated in Para 49 above and into the conduct of institutions who abused their position to advance their commercial interest illegally. Appropriate steps can thereafter be taken after culmination of such investigation. X The UGC shall also consider whether the Deemed to be University status enjoyed by JRN, AAI, IASE and VMRF calls for any withdrawal and conduct an inquiry in that behalf by 30.06.2018 as indicated above. If the moneys, as directed above are not refunded to the concerned students that factor shall be taken into account while conducting such exercise. (Downloaded on 30/06/2019 at 01:40:43 AM)
(4 of 10) [SAW-87/2019] XI We restrain all Deemed to be Universities to carry on any courses in distance education mode from the Academic Session 2018- 2019 onwards unless and until it is permissible to conduct such courses in distance education mode and specific permissions are granted by the concerned statutory/regulatory authorities in respect of each of those courses and unless the off-campus Centres/Study Centres are individually inspected and found adequate by the concerned Statutory Authorities. The approvals have to be course specific.
XII The UGC is further directed to take appropriate steps and implement Section 23 of the UGC Act and restrain Deemed to be Universities from using the word 'University' within one month from today.
XIII The Union of India may constitute a three members Committee comprising of eminent persons who have held high positions in the field of education, investigation, administration or law at national level within one month. The Committee may examine the issues indicated above and suggest a road map for strengthening and setting up of oversight and regulatory mechanism in the relevant field of higher education and allied issues within six months. The Committee may also suggest oversight mechanism to regulate the Deemed to be Universities. The Union of India may examine the said report and take such action as may be considered appropriate within one month thereafter and file an affidavit in this Court of the action taken on or before August 31, 2018. The matter shall be placed for consideration of this aspect on 11.09.2018." The learned Single Judge therefore while disposing of the writ petition directed the State Government to examine the case of each of the candidate individually in terms of the directions of the Apex Court, as noted above, and those candidates who have obtained qualification through distance education after 2005-06 and those from 2006-07 onwards, their degrees in engineering are directed to be cancelled and the students/candidates would be entitled to get the amount paid by them refunded from the concerned deemed universities. In view thereof, the learned Single Judge further observed that if any person has been granted promotion on the basis of such qualification, which has been (Downloaded on 30/06/2019 at 01:40:43 AM) (5 of 10) [SAW-87/2019] acquired after year 2005-06, the promotion shall be recalled and for others, promotion shall continue.
Shri Bhrigu Sharma, learned counsel for the appellants, has submitted that the learned Single Judge was not justified in applying the judgement of Supreme Court in Orissa Lift Irrigation Corporation Ltd., supra, to the case of the appellants. He has submitted that the Ministry of Human Resources Development, New Delhi, also notified on 1.3.1995 that degrees obtained from distance education are recognised for the purpose of employment, which is evident from Annexure-11. The Government of Rajasthan vide order dated 18.10.2012 also clarified that the degrees/diplomas/certificates awarded by the Open Universities in conformity with notification of the University Grants Commission be treated as equivalent to the corresponding awards of the traditional universities in the State. Reference is made to the office memorandum of the Ministry of Human Resources Development dated 6.12.2012 in which it was mentioned that all those students who are enrolled with the institutions with permanent recognition upto 31.5.2013 would be eligible for consideration in accordance with MHRD office memorandum/order in force pertaining to their course for equivalence in Central Government jobs. It is argued that the UGC vide letter dated 6.11.2003 also clarified that the degrees awarded by the Rajasthan Vidhyapeeth of B.Tech (Civil Engineering Course) both are recognised by universities. Reference is also made to the Circular dated 21.4.2005 issued by the Chief Engineer cum Additional Secretary, Public Works Department whereunder the degree obtained by distance mode of education has been accepted to be valid. The Institute of (Downloaded on 30/06/2019 at 01:40:43 AM) (6 of 10) [SAW-87/2019] Engineers vide its letter dated 1.4.2008 clarified that the deemed universities courses approved by the District Education Council are recognised. In this respect, the Ministry of Human Resources also issued a letter on 6.12.2012. It is argued that the appellants-writ petitioners have obtained the degrees from the Janardhan Rai Nagar Rajasthan Vidyapeeth University, Udaipur, which is a deemed university having recognition of programmes through distance education mode, which is approved by the statutory bodies. The All India Council for Technical Education also informed on 4.10.2007 that degree/diploma obtained through distance mode and approved by the Distance Education Council does not required AICTE approval. Reference is made to gazette notification dated 10.6.2015 whereby the Government of India recognised the degrees of such universities recognised by the UGC and come in the purview of Section 3 of UGC Act, 1956.
Learned counsel lastly relied on the order of Supreme Court in Jawaharlal Nehru Technological University Registrar vs. The Chairman and Managing Director Transmission Corporation of Telengana Ltd. & Ors., Civil Appeal No.3697-3698 of 2018 (Special Leave Petition (Civil) Nos.5560-5561 of 2018) dated 10.4.2018 and submitted that the Supreme Court in that case has diluted its earlier judgement in Orissa Lift Irrigation Corporation Ltd., supra, and held that in view of the distinguishing features in that case while directing that norms must be followed in future, the degrees and diplomas in question already granted to candidates admitted upto academic year 2009-2010 may be left undisturbed. To that extent, the impugned order of High Court was modified. Learned counsel submitted that owing to all the aforementioned arguments, particularly when the appellants have obtained the (Downloaded on 30/06/2019 at 01:40:43 AM) (7 of 10) [SAW-87/2019] degree with permission from the employer-department by taking classes in the study centre of the Janardan Rai Nagar Rajasthan Vidyapeeth through distance education mode, even if it be deemed university, the same should strictly apply to the case of the appellants.
Perusal of the order passed by the Supreme Court in Orissa Lift Irrigation Corporation Ltd., supra, indicates that the Supreme Court in that case held that the Technical education leading to the award of degrees in Engineering consists of imparting of lessons in theory as well as practicals. The practicals form the backbone of such education which is hands-on approach involving actual application of principles taught in theory under the watchful eyes of Demonstrators or Lecturers. Face to face imparting of knowledge in theory classes is to be reinforced in practical classes. The practicals, thus, constitute an integral part of the technical education system. If this established concept of imparting technical education as a qualitative norm is to be modified or altered and in a given case to be substituted by distance education learning, then as a concept the AICTE ought to have accepted it in clear terms. What parameters ought to be satisfied if the regular course of imparting technical education is in any way to be modified or altered, is for AICTE alone to decide. The Supreme Court in para 54 of the report also observed that conceptually there is some difference between the status of a University established under a State law and that of a Deemed to be University. Normally, a University is established with an idea that particular areas or districts of the State need to be catered to. Such University is expected to satisfy the needs or aspirations of people in the area for education and correspondingly empowered (Downloaded on 30/06/2019 at 01:40:43 AM) (8 of 10) [SAW-87/2019] to initiate new courses, keeping in tune with the needs of time. The Supreme Court in para 58 of the judgement therefore finally directed as under:
"58. The AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test/tests both in written examination as well as in practicals for the concerned students admitted during the academic sessions 2001-2005 covering all the concerned subjects. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institutes of Technology in respective States wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during May- June, 2018 or on such dates as AICTE may determine. Not more than two chances be given to the concerned students and if they do not pass the test/tests their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test/tests, the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the concerned Deemed to be University within a month of the exercise of such option. The students be given time till 15th of January, 2018 to exercise such option. The entire expenditure for conducting the test/tests in respect of students who wish to undergo test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. If they clear the test/tests within the stipulated time, all the advantages or benefits shall be restored to the concerned candidates. We make it clear at the cost of repetition that if the concerned candidates do not clear the test/tests within the time stipulated or choose not to appear at the test/tests, their degrees in Engineering through distance education shall stand recalled and cancelled. It goes without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however any monetary benefits or advantages in that behalf shall not be recovered from them."
Perusal of the aforesaid judgement of the Supreme Court thus clearly indicate that an exception was carved out by the Supreme Court for those students, who were enrolled in the academic session 2005-06 so as to protect the degrees obtained (Downloaded on 30/06/2019 at 01:40:43 AM) (9 of 10) [SAW-87/2019] by them, but that too was done with certain conditions. The AICTE was directed to devise within one month from the date of this judgment modalities to conduct appropriate test/tests both in written examination as well as in practicals for the concerned students admitted during the academic sessions 2001-2005 covering all the concerned subjects. The AICTE was expected to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institute of Technology in the respective States. Not more than two chances would be given to the students concerned and if they did not pass, their degrees shall be recalled or cancelled.
The cited judgement of the Supreme Court in Jawaharlal Nehru Technological University Registrar, supra, does not in any manner help the appellants, which would be evident from para 2 and 6 of the order of the Supreme Court. In para 2 thereof, the Supreme Court has noted the distinguishing features of the university, which has awarded the degrees in the aforesaid case that (1) it was a State University (2) it gave admissions in transparent manner (3) there was a contract programme and faculty was available, (4) practical work also held (5) DEC gave ex-post facto approval (5) the standards have not been compromised. And then the Supreme Court also noted that upto 2005, there were no bar for such courses being conducted even by Universities other than the State Universities. After 2009, the distance education system has been closed.
Taking note of the aforesaid distinguishing features, the Supreme Court in para 6, even though held that the view taken by the High Court is correct in law, but the diploma holder candidates upto the academic year 2009-10 may be left undisturbed. Such (Downloaded on 30/06/2019 at 01:40:43 AM) (10 of 10) [SAW-87/2019] are not the facts of the present case because the appellants have obtained the degree of engineering from private institution, which is deemed to be a university by distance education mode.
We do not find any such distinguishing feature in the case of the appellants in the present case. The learned Single Judge, in our view, therefore, cannot be held to have committed any error in dismissing the writ petitions.
The appeal is therefore dismissed.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
RS/104
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