Gauhati High Court
WP(C)/889/2018 on 24 January, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/60
GAHC010031092018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(C) No. 889 of 2018
1. SMT. ROHINI PHANGCHOPI
DAUGHTER OF LT. HEM CHANDRA PHANGCHO
VILL. AMUPUHUIRI, DOKMOKA
P.O. DOKMOKA, P.S. DOKMOKA,
DIST. KARBI ANGLONG, ASSAM.
2. MISS KABITA HAZARIKA
DAUGHTER OF
LATE KESHAB CHANDRA HAZARIKA
RESIDENT OF MATHURA NAGAR,
K.K. HANDIQUE ROAD
POLICE STATION- DISPUR,
GUWAHATI- 781006,
DISTRICT: KAMRUP (METRO), ASSAM
3. SHRI HIRAK CHANDA
SON OF SRI HIRENDRA KUMAR CHANDA
RESIDENT OF SATIJOYMATI NAGAR,
B.G. COLONY
POST OFFICE: GOTANAGAR
Page No.# 2/60
DISTRICT: KAMRUP (METRO),
GUWAHATI: 781033, ASSAM.
4. SIRAJUDDIN AHMED
SON OF LATE AFTAR ALI
RESIDENT OF AGGYATHURI
POST OFFICE: DADARA
DISTRICT: KAMRUP, ASSAM-781014
5. SHRI KULEN DAS
SON OF LATE PRAFULLA CHANDRA DAS
RESIDENT OF DWARAKA NAGAR,
NAVODOY PATH, HOUSE No. 45
POST OFFICE: KHANAPARA
DISTRICT: KAMRUP (METRO),
GUWAHATI-781022, ASSAM
6. SANJAY GOALA
SON OF LATE SHIBA PUJAN GOALA
RESIDENT OF VILLAGE- BOALJUR
POST OFFICE: BOALJUR
POLICE STATION: SONAI
DISTRICT: CACHAR-78115, ASSAM
7. SRI HARI DEKA
SON OF SRI DINESH CHANDRA DEKA
RESIDENT OF VILLAGE: AGDALA,
BAIHATA CHARIALI
POST OFFICE: BAIHATA CHARIALI
Page No.# 3/60
POLICE STATION: BAIHATA CHARIALI
DISTRICT : KAMRUP, ASSAM
......Petitioners
-Versus-
1. THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM,
WATER RESOURCES DEPTT
DISPUR, GUWAHATI.
2. THE DEPUTY SECRETARY (I)
TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR, GUWAHATI-781006
3. THE UNDER SECRETARY (E)
TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR, GUWAHATI-781006
4. THE SELECTION BOARD
REPRESENTED BY THE SECRETARY CUM CHAIRMAN
WATER RESROUCS DEPARTMENT
DISPUR, GUWAHATI-781006
5. THE DIRECTOR OF TECHNICAL EDUCATION
ASSAM, KAHILIPARA
GUWAHATI-19, ASSAM
......Respondents
Page No.# 4/60 For the Petitioners : Mr. Nilay Dutta, Sr. Advocate : Mr. N. N. B. Choudhury, Advocate : Mr. N. Sarkar : Mr. D. P. Sahu For the Respondent Nos.1-4 : Mr. B. Goswami, Addl. Advocate General : Ms. S. Chutia, Advocate For the Respondent No. 5 : Mr. K. Gogoi, Standing Counsel, Education (Technical) Deptt.
: Mr. R. Mazumder
Date of hearing : 05.09.2019, 24.10.2019 &
07.11.2019
Date of Judgment and order : 24.01.2020.
-Before-
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
JUDGMENT & ORDER (CAV)
Heard Mr. Nilay Dutta, learned senior counsel assisted by Mr. N. Sarkar, learned counsel for the petitioners. Also heard Mr. B. Goswami, learned Addl. Advocate General, Assam assisted by Ms. S. Chutia, learned Standing Counsel, Water Resources Department for respondent Nos. 1 to 4 and Mr. K. Gogoi, learned Standing Counsel, Education (Technical) Department for respondent No.5.
2. In this petition, the petitioners have sought for a direction from this Court to be issued to the State respondents to promote the petitioners to the posts of Assistant Engineers (Civil) as per recommendation made by the State Selection Board and Assam Public Service Commission and as approved by the State Page No.# 5/60 Government.
3. Mr. N. Dutta, learned senior counsel for the petitioners has narrated the factual background and submitted as follows.
4. All the petitioners are presently serving as Junior Engineers (Civil) in the Water Resources Department, Government of Assam. They possess the academic qualification of AMICE (I) which is admittedly equivalent to Bachelor of Engineering (B.E).
They all claim to be eligible for promotion to the higher posts of Assistant Engineers in the same Department as per rules.
5. It is the case of the petitioners that they were duly considered for promotion to the posts of Assistant Engineers and recommended by the State Selection Board in terms of Rule 15(5) of the Assam Engineering (Flood Control Department) Services Rules, 1981 read with Rule 11(5) and Rule 13 of the aforesaid Rules.
Rule 11 of the Assam Engineering (Flood Control Department) Service Rules, 1981 as amended reads as follows:
"11. Promotion as Assistant Engineer-
(1) The Appointing authority shall publish in the Government Gazette annually the number of vacancies in the respective cadres of Assistant engineers which have occurred or are likely to occur in the year.
(2) Subject to suitability as may be decided by the Board and by the Appointing Authority in consultation with the Commission, an officer belonging to the corresponding cadre of Subordinate Engineer Grade I in the Assam Subordinate Engineering (Flood Control Department) service under the Government and possessing the qualifications as set forth herein below shall be promoted to the cadre of Assistant Engineers in the Page No.# 6/60 manner provided in rules 13 and 14.
(3) The vacancies to the filled up by promotion of Sub-Engineers shall be so fixed that the promoted Assistant Engineer do not exceed 30% of the total corresponding cadre strength of permanent and temporary Assistant Engineers.
(4) A member of the Assam Subordinate Engineering Grade I (Flood Control Department) service shall be eligible for promotion as Assistant Engineer subject to the following conditions:-
(a) He has rendered minimum 8 years of service as a Subordinate Engineer on the First January of the year of promotion.
(b) He has been successfully undergone the training and passed the Departmental examination as prescribed Government from time to time.
(5) Notwithstanding anything contained herein before in this rule, subject to suitability, a Subordinate Engineer Grade-I, of the Assam Subordinate Engineering (Flood Control Department) service, on his acquiring the academic qualification, as prescribed for a direct recruit Assistant Engineer, shall be promoted as Asstt. Engineer, in consultation with the Commission, as provided in rule 14, against the next available vacancy in the cadre and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer for the purpose of these rules.
Amendment of Rule-11- In Rule 11 after sub-rule (5) the following should be inserted as near Rule 11 (A) namely-
Rule 11 A- Promotion as Assistant Research Officer -
Xxxxxxx Xxxxxxx"
Page No.# 7/60 Rule 13 of the aforesaid Rules reads as follows:
"13. General procedure for promotion.
(1) Before the end of each year the Government shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre.
(2) The Appointing Authority shall then furnish to the Board the following document sand information with regard to as many officers in order of seniority as four times the number of vacancies, as assessed under sub-R. (1):
(a) information about the number of vacancies;
(b) list of officers in order of seniority, eligible for promotion (separate lists for promotion to different cadres shall be furnished) indicating the cadre to which the case of promotion is to be considered;
(c) character rolls and personal files of the officers listed together with all papers showing that any adverse remark recorded in the character rolls has been duly communicated to the person concerned and any representation against such adverse remarks has been disposed of after sue consideration;
(d) details about reservation in case of promotion to the cadre of Assistant Engineer and about carry forward of vacancies as provided under sub-R.(3) of the R.11 and
(e) any other documents and information as may be considered necessary by the Appointing Authority or required by the Board. (3) The Appointing Authority shall simultaneously request the Board to recommend within one month a list of officers, found suitable for promotion in order of preference, in respect of promotion to each of the cadres in which recruitment is to be made by promotion. (4) Selection for promotion shall be on the basis of merit with due regard to seniority in all cadres or posts.
(5) The Board, after examination of the documents and information furnished by the Appointing Authority, shall recommend to the Appointing Authority a list of officers about double the probable number of vacancies, in order of preference, found suitable for promotion. In case the Board does not consider an officer suitable for promotion according to seniority, it shall record the reason thereof in writing and forward these reasons to the Appointing Authority together with the list.
Page No.# 8/60 (6) The Appointing Authority shall consider the list prepared by the Board along with character rolls and personal files of the employees and approve the list unless it considers any change necessary. If the Appointing Authority considers it necessary to make any change in the list received from the Board, he shall inform the Board of the Changes proposed and after taking into account the comments, if any, of the Board, may approve the list finally with such modifications, if any, as may in his opinion, be just and proper.
Provided that it shall not be necessary for the Appointing Authority to consider the list submitted by the Board recommending candidates for promotion under R.11. This list shall be forwarded by the Appointing Authority to the Commission, as provided under R.14(1). (7) The inclusion of a candidate's name in a list shall confer no right to promotion unless the Appointing Authority is satisfied after such enquiry, as may be considered necessary, that a candidate is suitable for promotion.
(8) The select lists shall remain valid for 12 months from the date of approval by the Commission in case of assistant Engineers and for 12 months from the date of approval by the Board on other cases. (9) The promotions shall be in accordance with the list finally approved by the Appointing Authority or by the Commission, as the case may be. (10) The select list as finally approved shall be published by the Appointing Authority in the Assam Gazette within 15 days from the date of approval:
Provided that the Government can remove any name from the select list in case of misconduct etc., coming to the notice of the Government and that no claim for promotion can be on the basis of the select list."
Rule 15(5) reads as follows:
"15(5) Board for promotion from Subordinate Engineer to Assistant Engineer; Senior Observer to River Research Assistant; and River Research Assistant to Assistant River Research Officer.
(i) Secretary,
Flood Control Department. -- Chairman.
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(ii) Chief Engineer,
Flood Control Department. -- Member.
(iii) All Additional Chief Engineers,
Flood Control Department. --Member.
(iv) Representative of Personnel --Member.
Department.
(v) Deputy Secretary (I), -- Member Secretary
Flood Control Department.
Rule 11(5) of the aforesaid Rules provides that a Subordinate Engineer Grade-I of the Assam Subordinate Engineer (Flood Control Department) Service, on his acquiring the academic qualification, as prescribed for a direct recruitment, shall be promoted as Assistant Engineer in consultation with the Assam Public Service Commission. As far as the academic qualification is concerned, the same is provided under Schedule II of the aforesaid Rules, similar to the one as prescribed for direct recruitment.
The aforesaid prescribed academic qualification reads as follows:
"Schedule II Academic qualification prescribed for direct recruitment to the cadres of Assistant Engineer and River Research Assistant, River Research Station.
1. A candidate for direct recruitment to the cadre of Assistant Engineer must possess a degree in the respective branch of Engineering namely, Civil Mechanical and Electrical of an Indian or foreign University recognized by the Government.
Or A Candidate having passed parts A and B of the Associate Membership Examination of the Institution of Engineers (India) and possessing a certificate to that effect from the Institution of Engineers (India) will also be educationally qualified for the direct recruitment as Assistant Engineer."
6. From the above what follows is that a person who possesses a degree in the respective branch of Engineering is eligible for promotion to the post of Page No.# 10/60 Assistant Engineer. In the alternative, a person having passed Parts A and B of the Associate Membership Examination of the Institution of Engineers (India) and possessing a certificate to that effect from the Institution of Engineers (India) is also eligible for promotion, even if, he does not possess degree in Engineering.
7. The case of the petitioners is that all of them passed both Parts A and B of the AMICE (I) and posses certificates to that effect from the Institution of Engineers (India) which is the alternative qualification recognized by the Rules for being eligible for promotion to the post of Assistant Engineer.
8. Accordingly, the petitioners were considered by the Selection Board as contemplated under the Rules in their meeting held on 27.02.2017 and were recommended for promotion to the posts of Assistant Engineers (Civil).
9. The aforesaid recommendation of the Selection Board was duly approved by the Assam Public Service Commission. The State Government thereafter issued a notification on 01.08.2017 in exercise of powers conferred under Sub- Rule 3 of Rule 14 of Assam Engineering (Flood Control Department) Services Rules, 1981 approving the recommendation of the petitioners and others for appointment to the posts of Assistant Engineers (Civil). However, the said notification also contained a caveat that inclusion of candidates' name in the select list shall confer no right for promotion unless the Appointing Authority is satisfied after such enquiry as the case may be considered necessary that a candidate is suitable for promotion.
10. The case of the petitioners is that in spite of being recommended by the Selection Board for promotion to the posts of Assistant Engineer and also being approved by the Assam Public Service Commission, which was acted upon by Page No.# 11/60 the State Government by issuing the notification on 01.08.2017, the authorities sat upon such recommendation without issuing any appointment order and accordingly, the petitioners have been compelled to approach this Court for issuing direction to the respondent authorities for issuing appointment orders in favour of the petitioners.
11. It has been submitted that as far as factual positions as regards the recommendation by the Selection Board, approval given by the Assam Public Service Commission and also issuance of notification by the State Government on 01.08.2017 accepting the recommendation of the petitioners for promotion to the posts of Assistant Engineer are concerned, there is no dispute from the State authorities.
12. According to the petitioners, however, because of reasons best known to the authorities, the respondent No. 1 without any authority sought clarification from Director of Technical Education about the qualification of Certificates A & B AMICE (I) issued by the Institution of Civil Engineers (India), though the office of the Director of Technical Education is a total stranger as far as the recruitment process is concerned.
13. It has been submitted that apart from the fact that the aforesaid course of action adopted by the respondent No. 1 was uncalled for, it was not at all necessary also for the reason that in terms of the relevant rules governing the service conditions including promotion, the petitioners admittedly fulfill the conditions required for promotion.
14. It is stated that all the petitioners had passed Parts A and B of the Associate Membership Examination of the Institution of Engineers (India) during the period 2010-2014 after they got themselves enrolled with Institution of Civil Page No.# 12/60 Engineers (India), Ludhiana during the period 2010-2012.
The petitioners contend that the aforesaid Institution of Civil Engineers (India) had certified that the petitioners had passed the aforesaid examinations.
It has been submitted that in that view of the matter, there ought not to have been any scope for any further clarification about the educational qualifications of the petitioners for the purpose of promotion to the higher posts of Assistant Engineers.
15. It has been submitted that be that as it may, even if the respondent No. 1 had sought for certain clarification from the Director of Technical Education, there is no adverse report or finding by any authority to question the validity of the aforesaid certificates possessed by the petitioners, on the basis of which the Selection Board made the recommendation of the petitioners for promotion, which was approved by the Assam Public Service Commission and accepted by the State Government.
16. It has been submitted that there may have been certain ambiguities about such certificates issued by the Institution of Engineers (India). However, such ambiguities had been clarified by the Government of India as far as back in 2012.
17. Learned senior counsel for the petitioners submits that the Ministry of Human Resources Development, Department of Higher Education, Govt. of India had issued an Office Memorandum on 06.12.2012 making clarifications about equivalence of qualifications relating to technical education obtained from technical Institutions with recognition upto 31.05.2013.
The said Office Memorandum reads as follows:
Page No.# 13/60 "F.No.11-15/2011-AR(TS.II) Government of India Ministry of Human Resources Development Department of Higher Education Shastri Bhawan, New Delhi-110115 Date: 06.12.2012 OFFICE MEMORANDUM In modification of Order F. No.- 11-15/2011-AR(TS.II) dated 10.07.2012 and to facilitate the institutions during transaction period, following decision has been taken in the Ministry:
(i) Above order dated 10.07.2012 regarding cases of recognition in perpetuity for equivalence in Central Government job, stands withdrawn.
(ii) All those students who are enrolled with the institutions with permanent recognition upto 31.05.2013 would be eligible for consideration in accordance with MHRD office memorandum/order in force pertaining to their course for equivalence in Central Government jobs. However, these concerned orders will cease to have effect from 01.06.2013 onwards.
(iii) After 31.05.2013, based on the review by the regulator i.e. AICTE, a decision on continuation of the certification of equivalence of degree/diploma shall be taken by statutory regulator.
(iv) Statutory regulators should review the fresh proposal/extension as per their statute and regulations.
2. In case, the institution desires to opt for realigning curriculum with NVEQF, it is advised to use its transition period upto 30.05.2013 for necessary action in this regard.
This issues with the approval of the Competent Authority.
(R.K. Maheshwari) Under Secretary to the Government of India Page No.# 14/60
1. AICTE/UGC/CBSE/UPSC/SSC/AIU.
2. Department of Personnel & Training.
3. Hindi Sahitya Sammelan, Allahabad.
4. Institution of Civil Engineers, Ludhiana (Pb.).
5. Institute of Mechanical Engineers (India), Mumbai.
6. Institute of Engineering (India), Kolkata.
7. Institution of Electronics and Telecommunication Engineers, New Delhi.
8. Institute of Fire Engineers, India (New Delhi).
9. Institution of Surveyors.
10. Tool Room & Training Centre, Wazipur, Delhi.
11. NEILIT.
12. College of Military Engineering, Pune.
13. National Institute for Training in Industrial Engineering, Bombay.
14. Indian Institute of Ceramics, Calcutta.
15. Aeronautical Society of India.
Copy to:
Xxxxx Xxxxx"
18. Thus, it has been clarified by the Government of India in the said Office Memorandum dated 06.12.2012 that all those students who had enrolled with Institutions with permanent recognition upto 31.05.2013 would be eligible for consideration in accordance with the MHRD Office Memorandum/order in force pertaining to their course for equivalence in Central Government jobs, and these concerned orders will cease to have effect from 01.06.2013 onwards.
Page No.# 15/60
19. It has been further provided in the said Office Memorandum that after 31.05.2013 based on the review by the regulator i.e. All India Council for Technical Education, (AICTE), a decision on continuation of the certification of equivalence of degree/diploma shall be taken by the statutory regulatory.
A copy of the said Office Memorandum was endorsed to the Institution of Civil Engineers (Ludhiana) from which the petitioners had obtained their certificates.
20. The All India Council for Technical Education (AICTE), which is mandated by the Parliament to regulate technical educations in terms of the Parliamentary statute, namely, National Council for Technical Education Act, 1993 also clarified the matter by referring to the aforesaid Office Memorandum dated 06.12.2012. The Council after taking into consideration the said Office Memorandum clarified on 25.09.2017 that all equivalence already issued in the past may be recognized for all purposes, i.e. higher education and jobs, in respect of those who have already been enrolled with Institutions with permanent recognition up to 31.05.2013.
The aforesaid clarification dated 25.09.2017 from the AICTE was followed by another clarification issue by the AICTE on 03.10.2017 in the communication addressed to the Director, Technical Education, Assam. For better appreciation, the aforesaid communication dated 03.10.2017 is reproduced hereinbelow.
"F. No. 2. PC/AICTE/ Gen.Dist.Edu.Policy/2016/278 Dated 03.10.2017 To Dr.Atul Bora, Director, Office of the Director of Technical Education, Assam Kahilipara Guwahati-19 Page No.# 16/60 Assam Sub:- Clarification regarding recognition of the Institution of Civil Engineers (India), Ludhiana, Punjab Dear Sir, Please refer to your Memo No. TE(E)C-9/2017/5665 dated 15.09.2017 on the above noted subject.
We would like to inform you that MHRD vide its Office Memorandum No. 11-15/2011-AR(TS) dated 06.12.2012 (Copy enclosed) has withdrawn the recognition given to the courses conducted by Professional Bodies/Institution such as ICE etc. Only those students who are enrolled with the permanent recognition up to 31.05.2013 with their Professional Bodies would be eligible for consideration pertaining to their courses for equivalence in Central Government jobs.
However, MHRD has referred matter to AICTE for review and accordingly, AICTE has constituted a standing committee to review the courses conducted by various professional bodies/institution conducting Technical Education.
The matter was also discussed in the Council meeting of AICTE and after due deliberations it was resolved that prior to the 31.05.2013 as mentioned in the aforesaid Notification of 06.12.2012, all such equivalences already issued in the past by MHRD may be recognized for all purposes (higher education and job) and this may be informed to MHRD. Further, the Council also decided that the committee looking into the matter may device parameters and process to take up the recognition of all professional societies individually regarding past 31.05.2013 scenario in respect of all such professional societies/bodies conducting Technical Education courses or conducting examinations and are affected by the MHRD's OM dated 06.12.2012 Regards, (Prof. R. Hariharan) Advisor-II (Policy & Academic Planning Bureau) Encls.: As above."
Page No.# 17/60
21. According to the learned senior counsel for the petitioners, the aforesaid clarifications made by the Government of India as contained in the Office Memorandum dated 06.12.2012 and clarifications dated 25.09.2017 & 03.10.2017 made by the AICTE would clear any doubt about the equivalence of the certificates possessed by the petitioners as degrees for the purpose of service related issues.
Accordingly, it has been submitted that there ought not to be any difficulty on the part of the authorities to proceed with the matter and issue necessary appointment orders in favour of the petitioners.
22. Learned senior counsel for the petitioners also has submitted that a similar issue had been raised in another Department, namely, the Irrigation Department in WP(C) No 5042/2017 and this Court after hearing the parties and considering the aforesaid clarifications made by the AICTE with reference to the relevant service Rules came to the finding that passing of Parts A & B Associate Membership Examination has to be treated as equivalent to passing of degree in Engineering.
The relevant portion of the aforesaid judgment dated 16.11.2017 rendered in WP(C) 5042/2017 reads as follows :
"2. The petitioners herein are all diploma holders in Civil Engineering/ Architectural Assistantship of the State Council for Technical Education, Assam and have also passed a three years Associate Membership Examination AMICE(I) in Civil Engineering from the Institute of Civil Engineers, India, which is stated to be located at Ludhiana in the State of Punjab.
4. But, subsequently by a notification of 14.03.2017, it was provided that the appointment letters in respect of 11 such selected candidates would be issue d only upon receipt of satisfactory enquiry report from the Director of Page No.# 18/60 Technical Education, Assam. The petitioners herein are amongst the said 11 candidates.
7. Pursuant to such direction of this Court, the Director of Technical Education, Assam had taken up the matter with the All India Council for Technical Education. As per the communication dated 03.10.20178 of the All India Council for Technical Education, the Director of Technical Education, Assam had been informed that all such clarifications have already been issued in the past by the Ministry of Human Resource and Development, Government of India and that all such professional degrees, which were obtained prior to 31.05.2013 are to be considered to be equivalent to a BE Degree. Accordingly, the Director of Technical Education, Assam had also issued an order dated 25.10.2017, wherein it is provided that in compliance of the earlier order of this Court dated 05.04.2017, the AICTE had informed that all such equivalence prior to 31.05.2013 be recognized for all purpose including the Higher Education and Jobs. Accordingly, it was provided that the qualification acquired by the petitioners from the Institute of Civil Engineer, Ludhiana, Punjab is to be considered as equivalent degree in Civil Engineering recognized by the AICTE.
9. In the aforesaid premises, as indicated above, as the satisfactory enquiry report has already been obtained and the matter has been appropriately clarified both by the AICTE as well as the Director of Technical Education, Assam, this Court does not find any further reason for not issuing the appointment letters to the petitioners pursuant to the said notification dated 14.03.2017.
10. In view of the above, it is directed that the respondent authorities shall now proceed with the issuance of the appointment letters to the petitioners and such appointment letters shall no further be withheld on the question of qualifications of the petitioners."
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23. Accordingly, it has been submitted that though the controversy arose in another Department, it was same in nature as the one raised in this petition and since the directions issued in the aforesaid writ petition have been complied by the authorities which had not been put to challenge before any higher judicial forum, the said decision has attained finality and as such, it will be binding upon the State Government. It has been contended that consequently, any action taken by the State Government in the present case contrary to the said decision would tantamount to violation of this Court's order.
24. Learned senior counsel for the petitioners has submitted that the rules governing service conditions in Flood Control Department are similar to that of Irrigation Department, and in fact, these are para materia as far as the scope or ambit of recruitment in these departments are concerned, as similar qualifications are prescribed by laying down similar processes and methodology of recruitment.
25. Accordingly, it has been submitted that there is no scope for the State authorities to take a different stand now and not to act upon the aforesaid recommendation of the petitioners for promotion to the posts of Assistant Engineers.
26. It has been submitted that once the Selection Board has made the recommendation by examining the educational qualifications of the petitioners and having found them eligible and suitable, which has been accepted by the Assam Public Service Commission and also acted upon by the State Government, there is no scope for reopening on the issue of eligibility of the candidature of the petitioners.
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27. It has been submitted that normally such recommendation made by an Expert Body and having been approved by the Public Service Commission ought to have been acted upon and accepted by the State Government unless there is perversity in the recommendation, or if there be any case of fraud played by any of the candidates, which being not the case here, the authorities are bound to accept the said recommendation made in terms of the Rules and accordingly, the issue necessary appointment orders.
28. It has been submitted that the Secretary (Water Resource Department), the respondent No. 1 himself was a Member of the Selection Board and the recommendation on being approved by the Public Service Commission was acted upon by the State authority and the respondent No. 1 was the authority who issued the acceptance notification on 01.08.2017 and as such, there is no scope for or any reason to refer the matter to the Director of Technical Education to seek clarification as mentioned above.
In fact, according to learned senior counsel for the petitioners, the aforesaid course of action undertaken by the respondent No. 1 is without jurisdiction and ultra vires the Rules, as the Director of Technical Education has no role to play in the aforesaid recruitment process which had been followed by the authorities concerned as mentioned above, and is a stranger to the entire recruitment process.
29. Learned senior counsel for the petitioners has submitted that perhaps the entire controversy has arisen after the respondent No. 1 wrote to the AICTE on 09.11.2017 seeking certain clarifications about the qualification of the petitioners by referring to their certificates as being obtained by Distance Education Mode without there being any basis to do so. It has been submitted that, in fact, in response to the said query sought by the respondent No. 1, the Page No.# 21/60 AICTE had clarified that the AICTE does not deal with questions which are involved in distance education course and for that reason, the approval by the AICTE is neither required.
It may be mentioned that the AICTE in the said clarification also did not state that the Institute from where the petitioners obtained the certificates is not approved by the AICTE.
30. In this regard, learned senior counsel for the petitioners also has referred to the correspondence from the Indira Gandhi National Open University (IGNOU) vide letter dated 25.04.2008 which was the authority at the relevant time dealing with distance education that the Institution of Civil Engineers, India does not provide education through distance mode but conducts Associate Membership Examination equivalent to a Degree and Technician Membership Examination equivalent to diploma for technical courses and as such, it does not come under the purview of Distance Education Council (DEC). It has been submitted that the aforesaid communication from the Indira Gandhi National Open University dated 25.04.2008 read with the clarification made by the AICTE dated 04.01.2018 will clearly indicate that the Institute from where the petitioners obtained their Certificates was not involved in distance education mode.
It has been submitted that accordingly, there is no ambiguity or doubt about the qualification obtained by the petitioners and as such, the authorities can be directed to issue necessary appointment orders.
31. Mr. B. Goswami, learned Additional Advocate General, Assam assisted by Ms. S. Chutia, learned Standing Counsel for Water Resources Department in response submits that the recruitment process out of which this petition has Page No.# 22/60 arisen relates to Rule 11 (5) of the Assam Engineering (Flood Control Department) Service Rules, 1981, under which though it is a promotional case, yet the rules contemplate that it shall be treated as a direct recruitment under which only those candidates i.e. Subordinate Engineers, Grade-I having qualification prescribed for direct recruitment to the post of Assistant Engineer will be eligible.
32. Learned Addl. Advocate General has submitted that contrary to the contention of the petitioners that they had obtained the certificates of Associate Member of Institution of Civil Engineers (India) [in short, AMICE(I)] for Civil Engineering from the Institution of Civil Engineers (India), Ludhiana not by way of Distance Education Mode, when the State Department granted approval to the petitioners to undertake the said course, it has been specifically mentioned that the Department had permitted them to prosecute the Degree Course of AMICE(I) under distance education mode, subject to the condition that it will not be an impediment to the day to day departmental and official obligations of the petitioners, as indicated in the approval letters dated 25.07.2011, 16.03.2016 (Annexure-1 series to the writ petition). Therefore, it is very clear that the petitioners undertook the aforesaid course under the distance education mode. It has been contended that this factum has not been denied by the petitioners, since they had obtained these certificates by way of distance education mode, these are not valid in terms of the decision of the Hon'ble Supreme court in Orissa Lift Irrigation Corporation Ltd. Vs. Rabi Sankar Patro & Ors. (2018) 1 SCC 468.
33. Learned Addl. Advocate General submits that it is a fact that the petitioner Nos.1 & 2 had obtained the said certificates in the year 2012, whereas the petitioner nos. 3 to 7 obtained the same in the year 2013, 2015 and 2016.
Page No.# 23/60 Learned Addl. Advocate General submits that since these appointments, which are sought to be made by way of promotion under Rule 11(5), though are treated as direct recruitment, there is no scope for adjudging the eligibility of the petitioners, except by referring to the certificates relied by them. Therefore, it is incumbent upon all the petitioners to satisfy the authorities that they possess the requisite academic qualifications required for direct recruitment to the post of Assistant Engineer. It has been submitted that though the petitioners were recommended by the State Selection Board which was approved by the Assam Public Service Commission and accepted by the State Government, for promotion to the posts of Assistant Engineers, the Government undertook the exercise to ascertain the genuineness of the certificates. It has been submitted that if the certificates relied on by the petitioners are ultimately found to be not genuine or invalid in spite of the recommendation made by the APSC, the Government is not bound to appoint them, as ultimately the Government which is the appointing authority must be satisfied with the genuineness of the certificates relied on by the petitioners. Accordingly, the State Government inquired from the Institute from where the petitioners obtained the certificates to clarify as to whether the certificates issued by the Institute are equivalent to Degree in Engineering. Though the said Institute had responded positively stating that these are equivalent to Degree, the Government authorities were not satisfied with the same and accordingly, inquired from the Director, Technical Education by specifically inquiring about the certificates produced by the 10 candidates including the present petitioners. The Government also wrote to the All India Council of Technical Education (AICTE in short) requesting information from the Council about the particulars of ten persons including the petitioners. In response, the AICTE clarified that in respect only two of the ten Page No.# 24/60 persons named by the State authority, their certificates were found in their records. However, as regards the remaining eight persons including the petitioners, it has been intimated by the AICTE that the requisite information may be sought from the UGC and the Distance Education Council, by clarifying that the distance education courses are not within the purview of the AICTE for approval as the AICTE neither grants approval for distance education courses nor approves the same.
After obtaining such information from the AICTE, the Government again wrote to the Institute from where the petitioners obtained certificates for further clarification. In response, the Institute clarified that they do not offer the course through distance education mode and also that the AICTE in their meeting held on 03.08.2017 had decided to recognize equivalence for all purposes including higher education and employment to technical courses conducted by the various professional bodies/institutions, which were duly recognized by the Ministry of Human Resources and Development with permanent recognition up to 31.05.2013, and as such, only those students who were enrolled with these institutions with permanent recognition upto 31.05.2013 would stand recognized.
Learned Addl. Advocate General submits that the petitioner Nos. 1 & 2 were enrolled in the said Institute and obtained certificates in the year 2012, whereas the remaining petitioner nos. 3 to 7 obtained their certificates in the year 2015, 2013 and 2016 and as such, those certificates obtained by the petitioners from an institute after 31.05.2013 would be subject to further scrutiny as it cannot be automatically recognized as valid. In other words, in respect of the petitioner nos. 3 to 7, their certificates would be subject to further verifications.
Page No.# 25/60
34. In this regard, learned Additional Advocate General also submits that the Institute of the Civil Engineering (India) from where the petitioners obtained the certificates, had laid down the necessary requirements to enable the candidates to be eligible for associate membership grade of AMICE(I) and the entitlements to write AMICE(I) with their names. The requirements, which are also in terms of the AICTE norms, are to be found in Annexure-4 to the affidavit-in-opposition filed by the respondent no.5, which are reproduced herein below:
"Certification Requirement I. Section A Examination will consist of 6 subjects. The candidate can appear in maximum of 4 subjects in one attempt.
II. Section B Examination will consist of 10 subjects out of which 5 subjects will be compulsory and 5 subjects will be specialized subjects. The candidate can select any 5 subjects from the Groups I-V related to his/her own field. The candidate can appear maximum of 4 subjects in one attempt.
III. On successful completion of 10 subjects of the Section B Examination, the candidate will work on a project related to the field of Civil/Architectural Engineering. The project duration will be i.e. approximately 6 months.
IV. The candidate has passed Section A and Section B examination of the institution and has an experience of three years working in an organization engaged in promoting Civil/Architectural Engineering profession.
V. The candidates has acquired practical experience of 3 years in a manner satisfactory to the Institution, in promotion, planning, design, construction, maintenance or management of such works as are comprised within the profession of a Civil/Architectural Engineering or in Civil/Architectural Engineering research or teaching of engineering in a course leading to the qualification approved by the Institution.
The practical training for Associate Membership will be carried out in AICTE approved Engineering College and the practical assessment will be conducted by the concerned Engineering Colleges wherever the candidate is undergoing practical training.
Page No.# 26/60 The project report for Associate Membership is to be submitted through the principal or Head of the Department of Civil Engineering/Architectural Engineering of AICTE approved Engineering College.
On meeting the requirements as above, a candidate becomes eligible for the Associate Membership Grade of the AMICE(I) and is entitled to write AMICE(I) with his/her name."
35. It has been submitted that reading of the aforesaid requirement would indicate that apart from completing the academic course, the candidate has to complete a project with a duration of six months and must have practical training of three years in a satisfactory manner of the Institution and such practical training will be carried out in an AICTE approved Engineering College and practical assessment will be conducted by the concerned engineering colleges, wherever the candidates are undergoing practical training. In other words, apart from completing the academic course, such a candidate must also complete the practical training under an Institution recognized by the AICTE. Thus, in absence of such training from an AICTE approved Institute, no one can said to have obtained the certificate validly. Any such certificate of AMICE(I) cannot be said to be valid till the candidate has undergone the aforesaid practical training of three years under an approved Engineering College.
It has been submitted that in the present case though the petitioners have been able to show successful completion of the academic course and the project work, they have not been able to demonstrate that they had also undertaken three years practical training course as required under the AICTE norms and as also followed in the Institution of Civil Engineers (India) from where the petitioners had obtained the certificates.
36. Referring to the contention of learned Senior Counsel for the petitioners that since the petitioners were enrolled in an AICTE recognised Institute before Page No.# 27/60 31.05.2013, the certificates obtained by the petitioners are valid, it has been submitted by learned Additional Advocate General that the aforesaid view is incorrect for the reason that the recognition granted up to 31.05.2013 was with reference to the recognition of the Institute and not in enrolment. In other words, those students who were enrolled in the Institution which was recognized only up to 31.05.2013 would be considered to be valid students and their certificates would be acceptable. However, those students who were enrolled in Institutions after 31.05.2013 cannot be considered to be valid students until they fulfill other conditions laid down by the authorities in this connection.
37. In this regard, learned Additional Advocate General has drawn attention of this Court to the documents annexed by the Respondent No.5 in their affidavit- in-opposition. Referring to the Office Memorandum dated 06.12.2012 issued by the Ministry of Human Resource Development wherein the situation has been explained in Sub-Para 2 of the of the aforesaid Memorandum, by stating that all those students who were enrolled with Institutions with permanent recognition upto 31.05.2013 will be eligible for consideration in accordance with the relevant Office Memorandum/orders in force, which will cease to have effect from 01.06.2013 onwards. Sub-para-3 provides that after 31.05.2013 based on the review by the regulator i.e. the AICTE, a decision on continuation of the certification of equivalence of degree/diploma shall be considered by the statutory regulator.
Further, referring to the official document dated 25.09.2017 from the AICTE addressed to the Director of Technical Education, it has been submitted that the matter was clarified by stating that all equivalence already issued in the past may be recognized for all purposes in respect of all those Institutes which Page No.# 28/60 were recognized up to 31.05.2013. However, in respect of the recognition of the professional societies/bodies in the post 31.05.2013 scenario, for such professional societies /bodies conducting technical education courses, the Committee will devise parameters/process to consider the recognition of such professional societies. It has been submitted that similar stand is reflected in the official communication dated 03.10.2017 from the AICTE to the Director of Technical Education.
38. Learned Additional Advocate General accordingly submits that from the above it is clearly evident that the period up to 31.05.2013 is with reference to the recognition of the Institute and not with the enrolment of the students. Accordingly, in the present case it has to be ascertained as to whether the Institute from which the petitioners had obtained their certificates were recognized as on 31.05.2013. If so, perhaps such certificates could be acted upon. However, if the certificates were issued after 31.05.2013, in such cases it has to be first ascertained as to whether the Institute was duly given recognition by the AICTE and that also on the basis of the parameters so laid down by the authorities.
Accordingly, it has been submitted that merely because the petitioners were enrolled before 31.05.2013 and also they have received the certificates, it would not automatically entitle them to claim to be bona fide students.
39. Learned Additional Advocate General has also referred to the reliance placed by the petitioners on the decision of this Court in WP(C) No.5042/2017. He submits that a careful reading of the aforesaid decision rendered by this Court would however, indicate that the factual positions obtained in the said case were different than the one in the present case. Though in the said case this Court had held that the three years Associate Membership Examination Page No.# 29/60 AMICE(I) in Civil Engineering from the Institute of Civil Engineers (India) can be said to be equivalent to degree course in Engineering, this Court held so under the circumstances mentioned therein. This Court had taken note of the fact that in the said case, the Director of Technical Education had himself verified the genuineness of the certificates after getting necessary information from the concerned authorities and after giving a personal hearing to all the candidates concerned and the Director being satisfied with the genuineness of the certificates so obtained by the petitioners in the said case, submitted a favourable report. In this regard, learned Additional Advocate General referred to para-7 of the aforesaid decision dated 16.11.2017, which reads as follows:
"7. Pursuant to such direction of this Court, the Director of Technical Education, Assam, had taken up the matter with the All India Council for Technical Education. As per the communication dated 03.10.2017 of the All India Council for Technical Education, the Director of Technical Education, Assam had been informed that all such clarifications have already been issued in the past by the Ministry of Human Resource and Development, Government of India and that all such professional degrees, which obtained prior to 31.05.2013 are to be considered to be equivalent to a BE Degree. Accordingly, the Director of Technical Education, Assam, had also issued an order dated 25.10.2017, wherein it is provided that in compliance of the earlier order of this Court dated 05.04.2017, the AICTE had informed that all such equivalence prior to 31.05.2013 be recognized for all purpose including the Higher Education and Jobs. Accordingly, it was provided that the qualification acquired by the petitioners from the Institute of Civil Engineer, Ludhiana, Punjab is to be considered as equivalent degree in Civil Engineering recognized by the AICTE."
40. Accordingly, it has been submitted that the decision of this Court in the aforesaid case holding that the AMICE(I) certificate issued by the Institute is equivalent to the degree course was made in the facts and circumstances obtained in the said petition. In the present case, however, there is no such finding by any authority that the certificates relied on by the petitioners are Page No.# 30/60 genuine. In fact, there are many circumstances which would indicate to the contrary. As mentioned above, the requirement for obtaining the certificate has been laid down by the Institute in terms of the AICTE guidelines which have been already quoted in para 34 above.
41. Learned Addl. Advocate General has further submitted that in this regard, the Water Resource Department had also written to the petitioners vide letter dated 04.08.2018 (Annexure-N to the affidavit-in-opposition filed by the Water Resource Department) to clarify the authority on the following points:
"1) Duration of Course,
2) Syllabus of Course,
3) Name of study centre/campus etc with detailed address wherein you studied or where you took your classes to obtain Section A & B of Associate Membership Examination AMICE(I) in Civil Engineering.
4) Whether the Course is regular/distance or other nature. If other, specify in details.
5) Practical/internship etc taken in details."
42. However, the petitioners had opted not to respond to the said clarifications sought by the authorities. In fact, the petitioners have not produced any certificate to show the practical experience, which is required for obtaining AMICE(I) certificate. Since the petitioners have not undertaken the mandatory three years practical training which is required under the rules, the certificates issued by the Institute cannot be said to be valid. Accordingly, it has been submitted that the aforesaid decision rendered by this Court would not be applicable in the present case and as the same is distinguishable on the facts of the case as mentioned above.
Page No.# 31/60 It has been submitted that since the State authorities are not convinced about the genuineness of the certificates relied on by the petitioners, the authorities cannot be compelled to appoint the petitioners by way of promotion under Rule 11 (5) to the posts of Assistant Engineers.
43. Mr. K. Gogoi, learned Standing Counsel, Higher Education (Technical) Department has reiterated the submission advanced by the learned Standing Counsel for the State Respondents, more particularly, with reference to the No Objection Letters/Certificates issued by the State Government at the time of allowing the petitioners to undergo the course in which it was made very clear that this permission was granted for undergoing the course under the distance education mode and it has been clarified by the Institute in their letter dated 17.04.2018 that they did not offer any course by distance education mode. It has been also submitted that the recognition of the Institute was up to 31.05.2013 and only those students who were enrolled in such Institution having recognition up to 31.05.2013 would be considered to be genuine students. Learned Standing Counsel has submitted that since the petitioners themselves have not shown any certificate or document about the practical experience, the certificates obtained by them cannot be said to be valid.
Mr. Gogoi, learned Standing Counsel, accordingly relying on the decision of the Hon'ble Supreme Court in Orissa Lift Irrigation (supra) submits that as the petitioners had obtained these certificates through distance education mode and without undergoing practical courses, these certificates are not valid.
44. Mr. N. Dutta, learned senior counsel for the petitioners in response submits that it is the contention of the respondent authorities that the petitioners had obtained the certificates in Associate Member of Institution of Civil Engineers (India) [AMICE(I)] through distance education mode. However, Page No.# 32/60 there is no basis for holding that the course undergone by the petitioners is by way of distance education mode. He submits that the respondents, more particularly, the Secretary, Water Resources Department, who succeeded the earlier Secretary during whose tenure the selection was made and approval was granted by the State Government, made an enquiry without any basis from the AICTE as well as the Director of Technical Education regarding the genuineness of the certificate obtained by the petitioners. It has been sought to be projected by the respondents by referring to the Office Memorandum dated 06.12.2012 issued by the Ministry of Human Resource Development, that only those students who had been enrolled with the Institutions with permanent recognition upto 31.05.2013 would be eligible for consideration in accordance with MHRD office memorandum/order in force pertaining to their course for equivalence in Central Government jobs and these concerned orders will cease to have effect from 01.06.2013 onwards, and after 31.05.2013 based on the review by the regulator i.e. AICTE, a decision on continuation of the certification of equivalence of degree/diploma shall be taken by statutory regulator. It was the contention of the respondents that when the petitioners got enrolled with the aforesaid Institution of Civil Engineers, Ludhiana, it was after 31.05.2013 and there is nothing to indicate that the said Institute got recognition thereafter on the review made by the regulator i.e. AICTE.
As regards this contention, it has been submitted by the Ld. Senior Counsel for the petitioners that the aforesaid contention is without any basis as the Ministry of Human Resource Development in their letter dated 28.02.2018 had clarified that the Institution of Civil Engineers (India) is recognized by the MHRD.
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45. As regards the contention of the respondents that the petitioners had obtained the certificates through distance education mode and that they did not undergo any practical courses, Ld. Senior Counsel contended that it is belied by the certificates in which it has been clearly mentioned that the Members had undergone practical training test and project work under AICTE approved engineering institution. According to the petitioners though they did not undergo the course and training in Ludhiana where the said Institution of Civil Engineers is located, they underwent the training in Kamrup Educational Trust, which is an institutional member of the aforesaid Institute of Engineering (India). It has been submitted that as an institutional member, the said Kamrup Educational Trust was authorised to offer practical courses, which the petitioners did undertake. Accordingly, it has been submitted that it is incorrect to say that the petitioners had obtained the aforesaid certificates through distance education mode.
46. As we proceed to examine the issues in the light of the aforesaid submission advanced, the relevant facts may be revisited as mentioned below.
(i) The matter pertains to promotion to the posts of Assistant Engineers from the posts of Junior Engineers.
(ii) To be eligible for promotion, the Junior Engineers have to possess the educational qualifications of Degree in the respective branch of Engineering or have passed Parts A and B of the Associate Membership Examination of the Institution of Engineers (India) and possessing a certificate to that effect from the Institution of Engineer (India).
Page No.# 34/60 All the petitioners claim that they passed both Parts A and B of the Associate Membership Examination of the Institution of Engineers (India) and possess certificates to that effect from the Institution of Engineers (India) and thus, eligible as these are equivalent to Degree in Engineering.
(iii) The petitioners were recommended by the State Selection Board for promotion as Assistant Engineers which was approved by the Assam Public Service Commission.
(iv) The State Government also approved the recommendation and accepted the same and notified it, but with a caveat that the inclusion of the candidate's name does not confer right to promotion unless the appointing authority is satisfied after such enquiry as the case may be considered necessary that the candidate is suitable for promotion.
(v) According to the State Government, though the petitioners may have passed Parts A and B of the Associate Membership Examination of the Institution of Engineers (India), these certificates are yet to be accepted as valid by the State Government.
(vi) However, the State Government has not taken an unequivocal and an unambiguous stand that these certificates are not valid, though in the affidavit in opposition as well as the time of hearing it has been indicated that these certificates are not yet accepted as valid by the State Government.
(vii) Thus, the crux of the issue is whether the certificates of passing of Parts A and B of the Associate Membership Examination of the Institution of Engineers (India) relied on by the petitioners are Page No.# 35/60 valid/recognized or not for the purpose of promotion/appointments to the posts of Assistant Engineers.
(viii) According to the authorities, the petitioners had obtained the degrees/certificates by way of distance education mode and as such these are not valid.
47. As can be seen from above, the petitioners have relied on the validity of the certificates/degree based on various correspondences and official certifications annexed to the writ petition and additional affidavits, affidavit-in- opposition of the official respondents.
48. However, in the opinion of this Court, these official documents and correspondences need to be examined in the backdrop of the decision of the Hon'ble Supreme Court in Orissa Lift Irrigation Corporation Ltd. versus Rabi Sankar Patro, (2018) 1 SCC 468 which was decided on 03.11.2017 after taking into account various aspects of technical education with particular reference to distance education mode in technical education.
49. In the said case, though, it relates to deemed to be Universities in awarding degrees in Technology through distance education mode, it would be highly relevant for our purpose also, for the reason that invalidation of degrees in Engineering obtained through distance education mode was the subject matter of challenge in the said decision as evident from para 10 of the said judgment in Orissa Lift Irrigation (supra) which is reproduced hereinbelow.
"10. The declaration invalidating the degrees in Engineering obtained through distance education mode has been the subject-matter of challenge by various students--candidates and institutions. Since the issues raised in those petitions are same as raised in matters arising out of the decision of the High Court of Orissa, these matters were taken up soon after the matters from Orissa. We are principally concerned in these cases only with Page No.# 36/60 courses leading to the degrees in Engineering through distance education mode." (emphasis added)."
50. It would, therefore, be apposite to refer to the aforesaid decision in a little bit more detail to appreciate the issues raised in this petition as well.
51. In the said case, the Engineering degrees offered by the deemed to be universities through distance education mode was the subject matter of consideration. The Hon'ble Supreme Court held that such engineering degrees offered by the deemed to be universities through distance education mode are not valid.
Two crucial decisions were taken by the Hon'ble Supreme Court.
Firstly, that unless such deemed to be universities are recognized by the AICTE, even if already recognized by the UGC, certificates/diplomas/degrees offered by such deemed to be universities in technical education are not valid.
Secondly, technical education cannot be imparted through distance education mode and if so, the same must be approved by the AICTE.
In coming to such conclusions the provisions of the University Grants Commission Act, 1956 (UGC Act), All India Council for Technical Education Act, 1987 (NCTE Act), Indira Gandhi National Open University Act 1985 (IGNOU Act) and Distance Education Council (DEC) were referred to as well as the various decisions of and correspondences with the Ministry of Human Resources Development (MHRD).
52. The University Grants Commission Act, 1956 (UGC) was enacted to make provisions for coordination and determination of standards in universities and for that purpose established University Grants Commission. Section 26 of the UGC Act empowers the UGC to make regulations consistent with the Act and Page No.# 37/60 with the rules made thereunder to lay down the minimum standards of instructions for grant of any degree by any University and also to regulate the maintenance of standards and coordination of work or facilities in universities.
53. On the other hand, India Gandhi National Open University Act, 1985 (IGNOU Act) was enacted to establish and incorporate Open University at the national level, for the introduction and promotion of distance education systems in the educational pattern of the country and for coordination and determination of standards in such systems.
54. Distance Education Council (DEC) was constituted in 1991 under Section 16 of the IGNOU Act whose primary duty was to take all such steps as are consistent with the provisions of the Act, Statutes and Ordinances for promotion of open university/distance education systems, its coordinated development, and determination of the standards.
55. The All India Council for Technical Education Act, 1987 (AICTE) was enacted to provide for the establishment of a Council with a view to proper planning and coordinated development of the technical education system throughout the country, promotion of qualitative improvement of such education and relationship and quantitative growth and regulation and proper maintenance of the norms and standards in the technical education system and for matters connected therewith.
56. These statutory bodies in tandem with the MHRD, Government of India had been issuing various notifications, circulars and guidelines which will have a bearing on issues involved this writ petition. Many of these notifications, circulars and guidelines have been discussed by the Hon'ble Supreme Court in aforesaid case as such it may not be necessary to reiterate the same here, but Page No.# 38/60 this Court would like to make the following observations based on the aforesaid decision of the Hon'ble Supreme Court in Orissa Lift Irrigation (supra).
57. While the UGC broadly covers institutions of higher education, as far as technical education is concerned, the AICTE is the competent authority to decide matters relating to technical education and wherever matters relating to distance education mode is concerned, the Distance Education Council (DEC) constituted under IGNOU was the competent authority. However, the notifications and guidelines issued by these authorities cannot be read in isolation and have to be understood by reading these together.
For example, regarding setting up of off-campus centre(s)/institution(s)/off shore campus and starting distance education programs by the deemed to be Universities, the UGC issued certain guidelines in the year 2004. Under the aforesaid guidelines it was laid down that deemed to be Universities shall normally be authorised to operate within its on-campus to conduct the authorised courses falling within the area of the specialisation. However, in deserving cases, the deemed to be University could start new departments within the university campus or start off-campus centres/institutions/off centre campuses on selective basis with specific permission of the UGC in each and every individual case.
58. It is also to be noted that on 3.2.2004, the DEC published notification making it mandatory for all centres/institutions/ directorates offering programs through distance education mode to apply to the DEC and obtain prior approval before starting any new centres/institution/directorates of program. It was further stated that Distance Education College/Institutions/directorates already offering programs through distance mode should submit their applications for approval of DEC in the prescribed format.
Page No.# 39/60 [See Para 23.7 of Orissa Lift Irrigation (supra)].
59. Further, on 4-2-2007, a public notice was issued jointly by AICTE, UGC and DEC. The notice stated as under:
"It has come to the notice of the University Grants Commission (UGC), the All India Council for Technical Education (AICTE) and the Distance Education Council (DEC), that some universities, institutions deemed to be universities and other institutions are offering technical education programmes in the "distance mode" without the approval of the statutory council concerned. All universities, institutions, deemed to be universities and other institutions are hereby cautioned that running such programmes and giving misleading advertisements regarding unapproved 'distance mode courses and programmes of study, shall attract severe action under the provisions of applicable laws, including that of derecognition and withdrawal of institutional approval;
It is hereby clarified, in the public interest that there are a number of courses or programmes of study leading to degree/diploma or other awards in Engineering & Technology, Management, Computer Applications, Architecture & Town Planning, Pharmacy, Hotel Management & Catering Technology, Applied Arts and Crafts, etc. which have not been approved by the appropriate statutory council for being conducted in the "distance mode". It is also reiterated that all courses or programmes of study in the "distance mode"
require the approval of DEC."
[See Para 27.14 of Orissa Lift Irrigation (supra)].
60. On 29.7.2009, MHRD wrote to the Chairman DEC for withdrawing immediately permission given to various institutions to conduct B.Tech/BE programmes through distance mode. The said letter dated 29.7.2009reads as follows:
"D.No. 6-7/2008-DL Dear Prof. Pillai, The matter regarding recognition of B.Tech degrees awarded by UGC recognised universities through distance education mode was examined in the Page No.# 40/60 Ministry. After a detailed examination of the subject-matter referred above, the following course of action has been approved at the highest level in the Ministry:
(i) DEC should immediately withdraw permission given to various institutions to conduct BTech/BE programmes through distance mode and no student should be admitted in the current year also.
(ii) Those who have already been admitted will have to pass both practical and written examination as may be prescribed in this regard so as to give validity to the B.Tech/BE degree acquired by them through distance education.
In view of the above, I would request you kindly to take further necessary steps to implement the action mentioned at Para ( i) above immediately and also further evolve a broad policy and guidelines to give effect to the action as mentioned at Para (ii) above. This being a very important and sensitive issue, an early action in the matter will be highly appreciated.
Yours sincerely, sd/-
(N.K. Sinha) Prof. V.N. Rajasekharan Pillai, Vice-Chancellor & Chairman, DEC, Indira Gandhi National Open University, Maidan Garhi, New Delhi-110068."
[See Para 30.13 of Orissa Lift Irrigation (supra)].
61. Subsequently, on 21.5.2010, the UGC framed the UGC (Institutions Deemed to be Universities) Regulations, 2010 consolidating guidelines issued from time to time in respect of factors to be taken in to consideration before granting the status of deemed to be university. Regulation 2.14 which defined statutory body includes, inter alia, AICTE, and Regulation 8.02 prescribes that the institution deemed to be university shall submit a certificate and an undertaking that the professional programmes being conducted by it, if any, have the approval of the relevant statutory/regulatory body. Regulation 12 deals Page No.# 41/60 with "new departments, off-campuses and offshore campuses" requiring direct administration of the off-campus/offshore campus by the parent institution deemed to be university in matters of admission, instruction, evaluation, conferring of degrees, etc. As regards distance education, it is categorically prohibited under Regulation 18.0 which reads as follows:
"18.0. Distance education.--No institution deemed to be university, so declared by the Central Government subsequent to these Regulations, shall be allowed to conduct courses in the distance mode. Also, such institutions declared as such, prior to these Regulations, shall not be allowed to conduct courses in the distance mode from any of its off-campus centre/offshore campus approved subsequent to these Regulations."
[See Para 30.15 of Orissa Lift Irrigation (supra)].
62. It may be noted that subsequently on the recommendation of the Madhava Menon Committee Report and Government of India's decision therein, an order has been issued on 29.12.2012 by the MHRD that the Distance Education Council of Indira Gandhi National Open University (IGNOU) created under Statute 28 of the IGNOU Act cannot act as a regulator for other universities as it creates conflict of interest, and for dissolution of Distance Education Council, and the MHRD clarified that, "(i) The UGC and AICTE as already empowered under their respective Acts, would also act as a regulator for higher education (excluding technical education) and technical education through open and distance learning (ODL) mode respectively. Universities are empowered under their respective Act to offer any programme course including in technical education in the conventional mode. However, if they offer any programme/course in ODL mode they would require recognition from the UGC, AICTE, NCTE and other such regulators of the conventional mode of education in those areas of study...."
[See Para 30.17 of Orissa Lift Irrigation (supra)].
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63. From the above, it is clear that it would be the AICTE which would be proper authority to deal with technical education including distance learning mode.
64. Subsequently, on 1.5.2913, the DEC was dissolved and the regulatory functions of "Open and Distance Learning Education" were taken over by UGC, whereafter a Notification was issued by UGC on 17-6-2013 that till it formulated regulations for maintaining standards in open and distance learning systems/courses, the UGC would adopt the guidelines of DEC on minimum requirements for recognition of institutions.
UGC then notified on 27.6.2013 that the deemed to be universities would not be allowed to take courses in distance education mode as follows:
"A deemed university shall operate only within its headquarters or from those off-campuses/offshore campuses which are approved by the Government of India through notification published in the Official Gazette. In case of distance education programmes, no institution deemed to be university, so declared by the Government of India after 26-5-2010 [date of publication of UGC (Institutions Deemed to be Universities) Regulations, 2010] is allowed to conduct courses in the distance mode. The institutions deemed to be universities declared before 26-5-2010 are not allowed to conduct courses in distance mode from any of its off-campus centres/off-shore campuses approved after 26-5-2010.
Approval for new courses and extension of approval of the courses already run by the deemed to be universities under distance mode would be granted by UGC subject to the fulfilment of conditions as laid down by UGC. UGC has not granted approval to any deemed to be university to establish study centres.
Any information/clarification with regard to recognition of private universities/deemed universities and the courses offered by them may be obtained from JS (CPPI) UGC, Bahadurshah Zafar Marg, New Delhi."
[See Para 30.19 of Orissa Lift Irrigation (supra)].
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65. As regards the issue of impermissibility of imparting technical education through distant mode, the Hon'ble Supreme Court examined the same in great length in Orissa Lift Irrigation (supra) as can be seen from the following paragraphs of the said decision:
"33. Further, reference was made to the Notification dated 5-4-2006 issued by MHRD, which inter alia dealt with the issues concerning maintenance or standards of education in institutions notified as deemed to be universities. The affidavit further stated that:
"That it is respectfully submitted that it has been the policy of AICTE not to recognise qualification acquired through distance education mode at diploma, Bachelors and Masters level in the fields of Engineering, Technology and Architecture, Town Planning, Pharmacy, Hotel Management and Catering Technology, Applied Arts and Crafts and Post Graduate Diploma in Management (PGDM). AICTE has the policy to consider only MBA and MCA through distance mode for its recognition. In these circumstances, AICTE has been issuing public notices from time to time informing the public and students regarding the above and specifically informing all the existing students/prospective students pursuing/wanted to pursue any educational programme in the above mentioned fields to check the approval by Joint Committee of DEC, UGC and AICTE on AICTE's web portal at www.aicte-india.org. It is respectfully submitted that AICTE has given various public notices in different newspapers regarding its aforesaid policy from time to time as per the AICTE Act.
That it is submitted that in view of the position explained hereinabove, the conduct of a technical course through distance education mode other than a course in MBA and MCA is not permissible. Thus, any technical course conducted by the technical institutions including the institution deemed to be university concerned through distance education mode, except a course in MBA and MCA, is contrary to the policy of AICTE. Hence, degrees or diplomas in technical course through distance education mode other than a course in MBA and MCA awarded by the technical institutions including the institution deemed to be university cannot be treated valid degree or diploma.
Page No.# 44/60 That it is submitted that in the present matter, the private respondent has obtained degree in Engineering from JRN Rajasthan Vidyapeeth, an institution deemed to be university, through distance education mode and through study centres which is not permissible as per the policy of AICTE. Thus, such degree in Engineering awarded by JRN Rajasthan Vidyapeeth, an institution deemed to be university, through distance mode is not valid."
(emphasis added)
34. DEC having been dissolved in May 2013, we do not have its stand on record but the stand of MHRD in its affidavit is to the following effect:
"VII. I further submit that up to year 2007 Distance Education Council (DEC) used to give recognition to institution offering general courses in the distance mode but during that year, Distance Education Council (DEC) also started giving recognition to such institutions to conduct technical programmes under the distance mode. This was in contradiction to policy adopted by AICTE which makes it mandatory to conduct technical programmes through the regular (conventional) mode of education. This created confusion amongst the stakeholders which gave unfair advantage to unscrupulous institutions conducting such courses in the distance mode. Accordingly, a Tripartite Committee of UGC-AICTE-DEC was constituted through an MoU in May 2007 for a limited period of three years.
VIII. In the meantime, on 19-2-2008 a meeting of the Secretary, Department of Higher Education, MHRD was held with the Heads of UGC, AICTE, IGNOU and Joint Secretary (DL) to discuss the issue of coordination and maintenance of standards in higher education through distance. In the said meeting, it was inter alia decided that the approvals should be granted to the courses and not to the institute. However, all those aforesaid arrangements did not live to the expectations." (emphasis added).
66. In the said case of Orissa Lift Irrigation (supra), the Hon'ble Supreme Court framed the following issues:
Page No.# 45/60 "A. Whether the deemed to be universities concerned in the present case, could start courses through distance education in subjects leading to award of degrees in Engineering:
(a) Without any parameters or guidelines having been laid down by AICTE for conduct of such courses in technical education through distance education mode?
(b) Without prior approval under the AICTE Act?
B. Whether DEC, on its own, was competent to grant permission to the deemed to be universities concerned to start such courses through distance education?"
67. The Hon'ble Supreme Court held that that without the guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the deemed to be universities were not justified in introducing such courses. While coming to such conclusion, the Hon'ble Court made the following observations about the role of the AICTE even for distance mode education and significance of the practicals.
"48. 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 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 decision must be specific and unequivocal and cannot be inferred merely because of absence of any guidelines in the matter. No such decision was ever expressed by AICTE. On the other hand, it has always maintained that courses leading to degrees in Engineering cannot be undertaken through distance Page No.# 46/60 education mode. Whether that approach is correct or not is not the point in issue. For the present purposes, if according to AICTE such courses ought not to be taught in distance education mode, that is the final word and is binding-- unless rectified in a manner known to law. Even National Policy on Education while emphasising the need to have a flexible, pattern and programmes through distance education learning in technical and managerial education, laid down in Para 6.19 that AICTE will be responsible for planning, formulation and maintenance of norms and standards including maintenance of parity of certification and ensuring coordinated and integrated development of technical and management education. In our view, whether subjects leading to degrees in Engineering could be taught in distance education mode or not is within the exclusive domain of AICTE. The answer to the first limb of the first question posed by us is therefore clear that without the guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the deemed to be universities were not justified in introducing such courses."
68. As regards the issue whether the deemed to be universities concerned in the present case, could start courses through distance education in subjects leading to award of degrees in Engineering without prior approval under the AICTE Act, it was held in the negative.
69. As regards the issue whether the DEC, on its own, was competent to grant permission to the deemed to be universities concerned to start such courses through distance education, the Hon'ble Supreme Court held that the DEC could not act as a regulator for universities and it alone was not entitled to grant permission for open and distance learning and appropriate permissions from the requisite authorities were always insisted upon.
70. After deciding as above, the Hon'ble Supreme Court concluded that such degrees in Engineering during the academic years 2001 to 2005 shall be suspended till they pass such examination under the joint supervision of AICTE-
Page No.# 47/60 UGC in the manner mentioned therein. It was accordingly, held and directed as follows:
"57. Having found the entire exercise of grant of ex post facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex post facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of courses leading to award of degrees in Engineering. However, since the 2004 UGC Guidelines themselves had given liberty to the deemed to be universities concerned to apply for ex post facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 2001-2005 is protected. Though we cannot wish away the fact that the deemed to be universities concerned flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the overbearing interest of the students concerned persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of the said ex post facto approval. However, the fact remains that the facilities available at the study centres concerned were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the students concerned. We, therefore, deem it appropriate to grant some chance to the students concerned to have their ability tested by authorities competent in that behalf. We, therefore, direct that all the degrees in Engineering granted to students who were enrolled during the academic years 2001 to 2005 shall stand suspended till they pass such examination under the joint supervision of AICTE-UGC in the manner indicated hereinafter. Further, every single advantage on the basis of that degree shall also stand suspended.
58. AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test(s) both in written examination as well as in practicals for the students concerned admitted during the academic sessions 2001-2005 covering all the subjects concerned. 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 the respective States wherever the students are Page No.# 48/60 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 students concerned and if they do not pass the test(s) their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test(s), the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the deemed to be university concerned within a month of the exercise of such option. The students be given time till 15-1-2018 to exercise such option. The entire expenditure for conducting the test(s) in respect of students who wish to undergo test(s) shall be recovered from the deemed to be universities concerned by 31-3-2018. If they clear the test(s) within the stipulated time, all the advantages or benefits shall be restored to the candidates concerned. We make it clear at the cost of repetition that if the candidates concerned do not clear the test(s) within the time stipulated or choose not to appear at the test(s), 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."
71. As regards those students admitted after the academic sessions 2001- 2005, the degrees in Engineering awarded by deemed Universities through distance education mode shall stand recalled and be treated as cancelled as held in para 59 of the judgment as reproduced below.
"59. As regards the students who were admitted after the ex post facto approval granted in favour of such deemed to be universities, in our view, there was no sanction whatsoever for their admission. The policy statements as well as warnings issued from time to time were absolutely clear. The students were admitted on the strength either of provisional recognition or on the strength of interim orders passed by the High Court. We therefore, declare that in respect of students admitted after the academic sessions of 2001-2005, the degrees in Engineering awarded by the deemed to be universities concerned through distance education mode shall stand recalled and be treated as cancelled. Any benefit which a candidate has secured as a result of such degrees in Engineering in the nature of promotion or advancement in Page No.# 49/60 career shall also stand recalled. However, if any monetary benefit was derived by such candidates that monetary benefit or advantage will not be recovered by the departments or employers concerned. We, further direct that the entire amount paid by such students to the deemed to be universities concerned towards tuition fee and all other expenditure for such courses through distance education learning shall be returned by the deemed to be universities concerned to the respective students. This direction shall be complied with by the deemed to be universities concerned scrupulously and the amounts shall be returned by 31-5-2018 and an appropriate affidavit to that extent shall be filed with UGC within a week thereafter."
72. In Para 48 of the Orissa Lift Irrigation (supra), the Hon'ble Supreme Court has made it very clear that without any clear guidelines being issued by the AICTE, technical education through distance education mode is not permissible in the following words, " The answer to the first limb of the first question posed by us is therefore clear that without the guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the deemed to be universities were not justified in introducing such courses."
73. Of course, the Hon'ble Supreme Court in the aforesaid case was considering the validity of the technical courses offered by deemed to be universities which were conferred such status for their excellence in subjects which are completely unrelated to the field in which new courses are sought to be introduced. For example, an institution engaged in teaching Fine Arts and Music, for its excellence in that chosen field--or for that matter an institution engaged in teaching Law had been conferred such status. The Hon'ble Supreme Court in the aforesaid decision was considering as to whether such a deemed to be university can claim immunity from regulatory control of AICTE and say that it is entitled, as a matter of right, to introduce courses in Engineering on the Page No.# 50/60 strength of the decision of this Court in Bharathidasan University Vs. AICTE, (2001) 8 SCC 676. The Hon'ble Supreme Court held that in the said case, none of the deemed to be universities was conferred such status for its excellence in the field of Engineering. Their fields were completely unrelated. As a matter of fact some of the deemed to be universities did not even have regular college or faculty for Engineering at their main campuses. And yet, they started courses in Engineering through distance education mode without the approval of AICTE, relying on the dictum in Bharathidasan University (supra). The Hon'ble Supreme Court held that such deemed to be universities could not have started such courses in technical education without the specific approval of the AICTE.
[See Para 49 and 50 of Orissa Lift Irrigation].
74. That the aforesaid observations and findings of the Hon'ble Supreme Court as regards deemed to be universities that it is not permissible for them to impart technical courses through distance mode education, in the opinion of this Court would be equally applicable for any institute also, including the Institution of Civil Engineers (India), Ludhiana.
In other words, Institution of Civil Engineers (India), Ludhiana from where the petitioners obtained their certificates could not have imparted any technical courses through distance mode without the specific permission or approval of the AICTE. The distinguishable feature in this case is that the Institution of Civil Engineers (India) is an AICTE approved institute imparting education in technical education unlike those deemed to be universities.
75. The case of the petitioners, thus, is that Institution of Civil Engineers (India), Ludhiana being recognized by the AICTE, the certificates conferred by Page No.# 51/60 the said Institute are valid and the petitioners did not obtained these certificates by way of distance mode. On the other hand, the case of the State Respondents is that the even though the petitioners had obtained the certificates from the said Institute recognition of which by the AICTE is not disputed by the State respondents, it is through distance mode, thus not valid which however, has been vehemently denied by the petitioners.
76. As the respective submissions and counter submissions of the contesting parties have been already discussed in detail, it may not be necessary to reiterate here, except to observe that the State Government insists that when permission was granted to the petitioners to undergo the technical course it was to be under the distance education mode without adversely affecting the normal official functions of the petitioners. The petitioners however, have forcefully insisted that they did not obtain these certificates through distance education mode as they had undergone the required practicals and training courses through local Institutes recognized by the Institution of Civil Engineers (India), Ludhiana, which are also recognized by the AICTE.
77. It is to be noted that as to whether Institution of Civil Engineers (India), Ludhiana which conferred the certificates to the petitioners is recognized by the AICTE or not is not an issue here in as much as the State Government has not disputed this aspect. What the State Government insists is that the petitioners had obtained their certificates by way of distant education mode, which is denied by the petitioners.
78. As mentioned above, the Hon'ble Supreme Court had clearly held in Orissa Lift Irrigation (supra) that it is not permissible for any Institution to offer any technical education by distant education mode and as far as technical Page No.# 52/60 education institution is concerned including the mode of imparting education it is the AICTE also which will have the final say, subject to conformity with UGC norms wherever required. Only the AICTE can properly decide what amounts to "distance education mode" when it relates to imparting technical education, what are the features of imparting technical education that it can be said to be by way of distance education mode.
79. Accordingly, in view of the peculiar nature of the dispute arisen herein, this Court is of the opinion that the AICTE would be the most appropriate authority to determine as to whether, the certificates obtained by the petitioners from the Institution of Civil Engineers (India), Ludhiana which is recognised by the AICTE, were obtained through distance education mode or not, and whether these were as per norms of the AICTE and hence valid. Unfortunately, in the present case, the petitioners have not impleaded AICTE as a respondent because of which this Court is not able to determine the issue raised definitively.
80. The fact also remains that the petitioners apparently did not undergo the course in which they were conferred the certificates in Ludhiana where the Institution of Civil Engineers (India) is located. Of course, it is also on record that all the petitioners have completed their Degree courses in compliance with the regulations and syllabus of Associate Member of Institution of Civil Engineers from Institution of Civil Engineers (India), Ludhiana and that the said Institute is recognized by the AICTE. It is also on record that all the petitioners had appeared in Section A Examination which consists of 6 subjects and also successfully appeared in Section B Examination which consists of 10 subjects out of which 5 subjects are compulsory and 5 are specialized subjected and after completion of Section A and B Examinations, the petitioners had Page No.# 53/60 undergone 6 months practical in different AICTE approved Engineering Colleges, as specified by the Institution of Civil Engineers (India), Ludhiana, as mentioned in para 7 of the affidavit in reply filed by the petitioners on 28.05.2019. On the basis of the aforesaid assertion, the petitioners have insisted that they did not obtain the certificates equivalent to Degree in Engineering by way of distant education mode. This is an aspect only the AICTE can conclusively state by clarifying whether the petitioners obtained these certificates by way of distance education mode or not and accordingly, valid or not, on the basis of the parameters that the AICTE has laid down or considers relevant.
81. As mentioned above, in absence of the AICTE before this Court, under the facts and rival submissions narrated above, this Court is handicapped in arriving at a conclusive finding that the certificates obtained by the petitioners were not by way of distant education mode or about the assertion by the State respondents that these certificates were definitive by distant education mode.
82. The Hon'ble Supreme Court had clearly held in Orissa Lift Irrigation (supra) that it is the AICTE which is the competent authority to decide issues relating to technical education including use of distance education mode in technical education and if any technical institute does not have the approval of the AICTE in imparting technical education including by way of distance education mode, any such certificate/degree conferred by such Institute will not be valid. The Supreme Court also had made it very clear that technical education by way of distance education mode is also not permissible and it is only the AICTE which will have the authority to decide on it on the issue of technical education by distance education mode.
Page No.# 54/60
83. It may be also observed that in view of the decision of the Hon'ble Supreme Court in Orissa Lift Irrigation (supra) most of the official correspondences and orders/memoranda relied on by the respective parties have become irrelevant as far as the issue about validity of technical education through distance education mode is concerned. This Court is of the view that the principles applicable to deemed to be Universities as laid down in the aforesaid case of Orissa Lift Irrigation (supra) will be equally applicable to all the technical institutions.
84. As discussed above, there is no issue about the recognition of Institution of Civil Engineers (India), Ludhiana by the AICTE. The State respondents have not disputed it. The only issue to be decided is whether the course undertaken by the petitioners in obtaining the certificates in passing Parts A and B of the Associate Membership Examination of the Institution of Civil Engineers (India), Ludhiana is to be treated as obtained by way of distance education mode as alleged by the State Government and asserted to the contrary by the petitioners and accordingly decide the validity of these certificates.
Thus, if it is found that that the certificates obtained by the petitioners were not obtained through distance education mode, and hence valid; and even if these were obtained through distance education mode, the same was approved by the AICTE, the petitioners would be entitled to be appointed in terms of the select list already notified.
On the other hand, if it is found that the certificates obtained by the petitioners were obtained through distance education mode and these certificates are held to be not valid by the AICTE, the petitioners would not be entitled to the reliefs claimed.
Page No.# 55/60
85. The natural question which arises is, how this main issue about validity of the certificates is to be decided by this Court, when the AICTE is not before this Court?
In the opinion of this Court, it would be most appropriate if the State government takes the onus of getting it examined by the AICTE. The State Government certainly has to play the primary role in undertaking this exercise in consulting the AICTE, as the State Government has not yet decided conclusively, either way, regarding the validity of the certificates of the petitioners under the Institution of Civil Engineers (India), Ludhiana, Punjab. It is to be noted that it is the State Government which had granted approval to the petitioners to undergo this course to the petitioners. It is these certificates which were duly considered by the State Selection Board at the time of considering their cases and which duly recommended the petitioners for promotion, which was also approved by the Assam Public Service Commission. The State Government also duly accepted the said recommendation. It was subsequently only that the State Government had dithered over acting upon the same because of objection raised from certain quarters as mentioned above. Yet, the State Government has not taken any firm and final decision in this regard, though there will be a presumption on the validity of the course undertaken by the petitioners as the State Government themselves had allowed the petitioners to undertake the course.
86. Accordingly, the State Government will have to ascertain from the AICTE about the validity of the certificates conferred by the Institution of Civil Engineers (India), Ludhiana to the petitioners for the purpose of appointment. As this exercise is for the benefit of the petitioners, the petitioners will fully cooperate with the State Government and submit all the necessary documents as sought for, to the State Government which will forward the same to the Page No.# 56/60 AICTE for their opinion, including those mentioned in para 41 of this judgment. In this exercise of ascertainment of validity of the certificates of the petitioners, it will be also open to the petitioners to put their cases before the AICTE, before the AICTE gives its opinion to the State Government about the validity of these certificates.
87. It is only after obtaining the opinion of the AICTE that the State Government will issue a speaking order about the validity of the certificates relied upon by the petitioners and depending upon the decision of the State Government, necessary consequential actions will be taken by the State Government either to appoint the petitioners or not to act upon the select list, as the case may be, as directed above.
In other words, if the AICTE upholds the validity of the certificates of the petitioners, the State Government will duly accept the same and issue appointment orders in favour of the petitioners immediately on the basis of the select list notified on 01.08.2017.
88. In this regard, it may be mentioned that the State Respondents had earlier referred the matter about the petitioners to the AICTE as evident from the letter dated 9.11.2017. But it will be seen from the said letter that the State Government sought information/views from the AICTE as to whether the course from the Institute of Civil Engineers (India), Ludhiana, Punjab (distance mode) is equivalent to the Bachelor Degree in Civil Engineering for recruitment/promotion in government service approved by the AICTE or competent authorities. In the said letter, the State Government had treated the certificates obtained by the petitioners from the Institute of Civil Engineers (India), Ludhiana to be by way of distance education mode. In response to the said clarification sought by the State Government, the AICTE responded vide Page No.# 57/60 their letter dated 04.01.2018 that for the said Institute, information may be sought from University Grants Commission for University cases, and Distance Education Council for Distance Education Courses, further clarifying that Distance Education Courses are not under AICTE purview for approval and the Institute never applied to AICTE nor was approved by AICTE. Thus, the response of the AICTE seems to be that AICTE does not deal with matters relating to distance education courses.
89. The above communication between the State Government and the AICTE was based on the premise that the course undertaken by the petitioners was through distance education mode, which premise however, has been denied by the petitioners. The response of the AICTE, in the opinion of this Court, does not sufficiently dispel the ambiguities and lack of clarity about the validity of the certificates obtained by the petitioners.
90. In the opinion of this Court, under the circumstances, AICTE would be the best authority to determine what amounts to "distance education mode" and if the course undertaken by the petitioners is not by way of "distance education mode", certainly the certificates relied upon by the petitioners are to be acted upon by the authorities.
91. As discussed above, the petitioners have asserted that they did not obtain the certificates by way of distance education mode. Since the petitioners are asserting that they had obtained these certificates not by way of distance education mode as mentioned above, it is incumbent upon them also to furnish all the relevant documents and necessary information in support of the claim to the State Government including the manner in which they had undergone the course and also as required by the State Government after which the State Government shall refer the matter to the AICTE for a fresh reconsideration on Page No.# 58/60 the basis of the documents and the information that may be furnished by the petitioners. These documents and information will be duly forwarded by the State Government to the AICTE for their opinion. As already observed above, the petitioners would be at liberty also to obtain necessary information or documents from the Institute of Civil Engineers (India), Ludhiana, Punjab to buttress their claim that the certificates obtained by them was not by way of distance education mode.
92. The aforesaid exercise as directed above is to be undertaken and completed by the State Government in consultation with the AICTE as expeditiously as possible and preferably within a period of 3 (three) months from the date of receipt of a certified copy of this order. It is also provided that till such exercise is completed, a proportionate number of posts of Assistant Engineers in the Water Resources Department, Government of Assam, as the number of petitioners, will not be filled up, which shall be filled up by the petitioners, in the event they are successful, or by a fresh recruitment process if they are not successful, as the case may be.
93. Before parting, this Court would like to refer to certain submissions made on behalf of the petitioners. The petitioners have forcefully put their case that once their eligibility and suitability had been considered and approved by the State Selection Board and also by the Assam Public Service Commission, and consequently duly accepted by the State Government by notifying the Select List, the State Government is estopped from raising this issue of the eligibility of the petitioners.
As regards this contention, this Court would hold that even though the State Government cannot ordinarily question the eligibility and suitability of the Page No.# 59/60 recommended candidates, as the same had been already considered and examined by the appropriate expert bodies, if such objection goes to the very root of the claim, it would be competent for the State government, being the appointing authority, to examine the same at any stage. For example, if it is later found that the certificates relied upon the by the petitioners are not genuine or manipulated and thus not valid (though it is not the case herein) the appointing authority can certainly refrain from giving effect to such recommendation or select list and even cancel the appointment already made. Similarly, as in the present case, if the AICTE holds that the certificates in issue are not valid for the reason that it was not through the approved mode, the State Government can certainly ignore the recommendation for appointment made on the basis of such certificates. This is a power inherent and remains with the appointing authority which can be invoked at any stage of appointment but subject to observation of principles of natural justice and/or relevant services rules.
In the present case, the issue raised by the State Government goes to the very root and foundation of the claim of the petitioners and if it is found that the certificates relied upon by the petitioners are not valid, the State Government would be within its authority to deny promotion to the petitioners.
94. As regards the contention of the petitioners that the issue raised in this petition is covered by the decision rendered by this Court in WP(C) No. 5042/2017, disposed of on 16.11.2017, this Court is of the opinion that in view of the decision rendered by the Hon'ble Supreme Court in Orissa Lift Irrigation (supra), the matter would require to be further examined in terms of the decision of the Hon'ble Supreme Court as referred to above, more particularly as regards the issue of validity of a certificate/ diploma/degree Page No.# 60/60 course offered by any Technical Institution through distance mode education as referred to above.
In the opinion of this Court, matters relating to technical education, distance education mode and AICTE have been comprehensively and decisively dealt with by the Hon'ble Supreme Court in the aforesaid case and as such, any decision rendered by this Court relating to technical education, distance education mode and AICTE are to be in tune with the said decision.
It appears from the decision rendered in the aforesaid writ petition, WP(C) No. 5042/2017 that the decision of the Hon'ble Supreme Court in the aforesaid case, Orissa Lift Irrigation (supra) was not referred to.
95. In the backdrop of the reasons discussed above, with the above observations and directions, this petition is disposed of. Parties are to bear their own costs.
JUDGE Comparing Assistant