Gauhati High Court
Page No.# 1/ vs The State Of Assam And 2 Ors on 17 December, 2020
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/10
GAHC010147292019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4529/2019
MUNINDRA BARMAN AND 4 ORS.
S/O- LATE NARENDRA NATH BARMAN, R/O- H NO. 25, FLAT NO. 3(C)
GAURAV ROSE BAY, MADHUBAN NAMGHAR PATH, BAMUNIMAIDAM,
GHY- 21
2: SUBHASH THAKURIA
S/O- LATE KRISHNA KANTA THAKURIA
R/O- VILL- BAIRAGI
P.O AND P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
PIN- 781326
3: APURBA NATH
S/O- LATE GOURHARI NATH
R/O- H NO.7
ASEB ROAD
P.O- ULUBARI
NEAR SHIVA HOTEL
GHY- 781007
DIST- KAMRUP(M)
4: UPENDRAJIT DAS
S/O- LATE ADITYA CH DAS
R/O- H NO. 35
EAST JYOTINAGAR BYE LANE NO.3
P.O- BAMUNIMAIDAM
GHY- 21
DIST- KAMRUP
ASSAM
5: ARIF HUSSAIN
S/O- LATE MOKBUL HUSSAIN
C/O- DR. NEKIB HUSSAIN
Page No.# 2/10
R/O- H NO. 1
BYE LANE NO.3
BISHNUJYOTI PATH
HATIGAON
GHY- 38
DIST- KAMRUP(M)
ASSA
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT OF
ASSAM, PUBLIC WORK(ROADS) DEPTT, DISPUR, GHY- 781006
2:THE COMMISSIONER AND SPECIAL SECRETARY
TO THE GOVT OF ASSAM
PUBLIC WORKS(BUILDING AND NH)
DISPUR
GHY- 781006
3:THE SECRETARY
TO THE GOVT OF ASSAM
PWD
DISPUR
GHY- 0
Advocate for the Petitioner : MR. A SARMA
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/7937/2018
MANIK DUTTA AND 4 ORS.
S/O- LT SRIKANTA DUTTA
OFFICE OF THE EXECUTIVE ENGINEER
PUBLIC WORKS ROADS DEPTT.
GUWAHATI ROAD DIVISION
GHY-1
2: SIMANTA KUSUM SARMAH
S/O- LT BIRESWAR SARMAH
OFFICE OF THE EXECUTIVE ENGINEER
P.W.D.
Page No.# 3/10
RANGIA N.H. DIVISION
RANGIA
3: JAMINI KUMAR BARMAN
S/O- LT BHOGIRAM BARMAN
OFFICE OF THE EXECUTIVE ENGINEER
PWRD
GUWAHATI CITY DIVISION NO. II
GHY-21
4: NEWTON DEORI
S/O- SRI PROFULLA DEORI
OFFICE OF THE CHIEF ENGINEER
PWRD
ASSAM
CHANDMARI
GHY-3
5: CHANDAN DEKA
S/O- SRI RAMANI MOHAN DEKA
OFFICE OF THE CHIEF ENGINEER
PWRD
ASSAM
CHANDMARI
GHY-3
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMM. AND SPECIAL SECY. TO THE GOVT. OF ASSAM
PUBLIC WORKS (ROADS) DEPTT.
DISPUR
GHY-6
2:THE COMMISSIONER AND SPECIAL SECY.
TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. (BUILDING AND N.H)
DISPUR
GHY-6
3:THE SECY. TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT.
DISPUR
GHY-6
------------
Advocate for : MR. M K CHOUDHURY
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 2 ORS.
Page No.# 4/10
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 17-12-2020
JUDGMENT & ORDER (ORAL)
Heard Mr. BD Das, learned senior counsel for the petitioners in WP(C)No.7937/2018 and Mr. A Sarma, learned counsel for the petitioners in WP(C)No.4529/2019. Also heard Mr. D Nath, learned standing counsel for the authorities under the PWD.
2. Without narrating the facts in detail as to what had transpired between the parties, it would be suffice for us to take note of that the writ petitioners were all appointed as Junior Engineer in the PWD based upon their qualification of a three year diploma course of Civil Engineering. Rule 11 of the Assam Engineering (Public Works Department) Service Rules, 1978 as amended from time to time (for short, the Rules of 1978) provides under Rule 11(4) for a promotion to be given to the Junior Engineer to the post of Assistant Engineer upon acquiring the academic qualification of B.Tech (Civil) in course of their employment which is, in fact, the prescribed qualification for a direct recruitment to the post of Assistant Engineer. Rule 11(4) of the Rules of 1978 is extracted as below:
"11(4) A member of the Assam Subordinate Engineering (PWD) 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 successfully undergone the training and passed the Departmental examination as prescribed by Government from time to time.
(c) Notwithstanding anything contained herein before in this rule, subject to suitability, a subordinate Engineer Grade I of the Assam Subordinate Engineeering (P.W.D) Service on his acquiring the academic qualification as prescribed for a direct recruit Assistant Engineer shall be promoted as Assistant Engineer, in consultation with the Commission, as provided in rule 14 against the next available vacany in the cadre and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer for the purpose of these rules."
Page No.# 5/10
3. The provisions of Rule 11(4) apparently appears to be a relevant provision by which a diploma holder Junior Engineer who acquires the qualification for a direct recruitment to Assistant Engineer would be promoted as Assistant Engineer.
4. It is stated that pursuant to earlier litigations between the parties, a select list dated 30.10.2017 was issued by the Secretary to the Government of Assam in the PWD by which 15 numbers of Junior Engineers in the PWD were approved for promotion to the rank of Assistant Engineer (Civil) upon having acquired the qualification prescribed for the post of Assistant Engineer. The writ petitioners in WP(C)No.7937/2018 appears at Sl. No.9, 11, 12, 13 and 15 of the list dated 30.10.2017 whereas the writ petitioners in WP(C)No.4529/2019 are at Sl.No.2, 3, 7, 8, and 14 of the said select list. The petitioners are aggrieved in this writ petition to the extent that the qualification for direct recruitment for the post of Assistant Engineer obtained by them being the B.Tech degree from the Institute of Advanced Studies in Education University (for short, the IASE), Sardarshar, Rajasthan was not recognized by the respondent authorities to be a valid degree and, therefore, the approved list for promotion dated 30.10.2017 wherein their names did appear was not acted upon to give effect to the promotion.
5. The petitioners relies upon the pronouncement of the Supreme Court in Orissa Lift Irrigation Corp. Ltd. vs Rabi Sankar Patro reported in 2018(1)SCC 468 wherein the Supreme Court had the occasion of going into the question whether the B.Tech degree obtained through the distant education mode from certain institutes including the IASE would be a valid B.Tech degree. According to the petitioners in the said judgment, the Supreme Court had provided that all such candidates who had obtained their B.Tech degree from the institutes under consideration would be required to sit in a test to be conducted by the AICTE/UGC within a stipulated time frame and in the event the candidates do successfully complete the test to be conducted as directed by the Supreme Court, all the benefits that they would have otherwise accrued under the B.Tech degree that was obtained would be restored to them. The Supreme Court further provided that till the candidates successfully completed such tests their B.Tech degree would remain suspended.
6. Based on the proposition provided by the Supreme Court, the petitioners contends that in the Page No.# 6/10 meantime, they had successfully completed the test conducted by the AICTE/UGC as directed by the Supreme Court and, therefore, the effect thereof would be that their B.Tech degree obtained from the IASE, would now be a valid B.Tech degree endowed with all the benefits that they could have accrued had the degree been a valid degree from the date it was obtained.
7. Mr. D Nath, learned standing counsel for the PWD on the other hand refers to the judgment of the Supreme Court in High Court of Delhi and another Vs. AK Mahajan and others., reported in (2009)12 SCC 62 wherein the Supreme Court had dealt with an issue as regards the benefits of service condition that may be accrued under an un-amended provisions of law vis-à-vis the provisions under an amended law. By referring to the said decision, it is the contention of Mr. D Nath, learned standing counsel that the benefits that were restored to the petitioners as per the decision of the Supreme Court in Orissa Lift Irrigation Corp. Ltd.(supra) would be confined to the benefits under the service condition of the petitioners meaning thereby the benefit that had accrued to them by virtue of the select list dated 30.10.2017. According to the learned counsel as on the said date neither the Supreme Court judgment was in place nor the petitioners had a valid degree, therefore, no benefit could have accrued to them as on 30.10.2017 and, therefore, the promotions claimed by the petitioners cannot be given effect. According to Mr. D Nath, learned standing counsel that as no benefit had accrued as on 30.10.2017, therefore, no question arises on the restoration of the benefits in respect of the petitioners pursuant to the law laid down by the Supreme Court in Orissa Lift Irrigation Corp. Ltd.(supra). If any benefit is restored to the petitioners such benefit would be for future recruitment process that may be initiated for the purpose for promotion from Junior Engineer to Assistant Engineer.
8. In order to appreciate the rival contentions, we extract the relevant paragraphs of the judgment of the Supreme Court in Orissa Lift Irrigation Corp. Ltd.(supra), more particularly, paragraphs 57 and 58 which are 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 Page No.# 7/10 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 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.
9. From a reading of the paragraph 57 of the judgment of the Supreme Court in Orissa Lift Irrigation Corp. Ltd.(supra), it is discernible that the Supreme Court was of the view that the deemed to be University which had offered the distant mode education in B.Tech degree had flagrantly violated and entered into the areas where they had no experience and had started the distance mode education system illegally. But the Supreme Court was conscious of the overbearing interest of the students concerned which persuaded the Court not to resort to a recalling of all the degrees in B.Tech that were granted to the students pursuant to such distance education mode degrees. But at the same time, the Court was of the view that there must be a confidence regarding the worrisome of the Page No.# 8/10 degrees obtained by the students in such manner and therefore, it was deemed appropriate that some chance be given to the students concerned to have their ability tested by the authorities competent on that behalf. Accordingly in paragraph 57 of the said judgment the Supreme Court had kept under suspension the B.Tech degrees that were obtained by such candidates during the academic year from 2001 to 2005 till such students pass the examination to be conducted under the joint supervision of the AICTE/UGC in the manner as indicated in the said judgment. It was also provided that every single advantage and benefits of such degree would also remain suspended.
10. In paragraph 58, the Supreme Court directed that appropriate test both in written as well as in practical be conducted to such students who were admitted to the academic session 2001-2005 covering all subjects concerned and further not more than 2(two) chances be given to the students concerned. It further provided that if the students do not pass the test as ordered their degree shall stand recalled and cancelled.
11. In paragraph 58 of the judgment, the Supreme Court again provided that if the students successfully complete the tests within the stipulated time, the benefits shall be restored to the students concerned. It was further provided that if the students concerned do not clear the test within the time stipulated or chose not to appear in the test, their degree of B.Tech through distance education mode shall stand recalled and cancelled.
12. It was also provided that in the event of non-clearing the test, the degree would stand recalled or cancelled, the monetary benefit or advantage that the students concerned may have secured on the basis of such recalled degree would not be recovered from them.
13. In the instant case, all the petitioners had successfully completed the test as required by the Supreme Court and in the circumstance, we are required to understand the proposition of law laid down by the Supreme Court which provided that if the candidates clear the test within the stipulated time, all advantages or benefits shall be restored to the candidates concerned. Mr. D Nath, learned standing counsel understands the provisions of the Supreme Court by linking the expression advantage or benefits to be restored to mean as to what advantages or benefits the present petitioners had in the meantime acquired during their service career. Mr. D Nath, learned standing Page No.# 9/10 counsel contends that in the select list dated 30.10.2017 no benefit as such had been acquired by the petitioners, inasmuch as, they were not so promoted pursuant to the said select list and, therefore, there cannot be a question to restore any benefit in their favour. In order to understand the contention of Mr. D Nath, learned standing counsel we take a look as to what the standing counsel seeks to contend. Firstly, till such successful completion of the test is undertaken, the Supreme Court had suspended the B.Tech degrees that the petitioners had acquired from the IASE. The Supreme Court further provided that after the students cleared the test as ordered, all the advantages or benefits shall be restored to them. Reading the two provisions together we understand that the Supreme Court by providing that all the advantages and the benefits shall be restored to the candidates concerned would mean that whatever advantages or benefits students concerned had acquired pursuant to the B.Tech degree obtained by them from the concerned University from the time they had acquired such degree would stand restored to them, meaning thereby that as if the degree they had obtained was a valid degree all along. In other words, all such advantages and benefits that the petitioners would have obtained had it all along been considered that their B.Tech degree were a valid degree.
14. However, what we do not accept is the contention of Mr. D Nath, learned standing counsel that as regards the relevance of the decision of the Supreme Court rendered in AK Mahajan (supra) inasmuch as, the said decision pertains to a benefit that had accrued in course of the service conditions of the petitioners therein, rendered in a circumstances whether the benefits would accrue as per the pre-amended provisions or under the amended provisions therein, inasmuch as, in the present case, the advantages and benefits relates to the effect of the B.Tech degrees of the petitioners and not related to any service conditions or to any un-amended or amended rules.
15. It clearly refers to the benefits that the petitioners ought to have accrued had it all along been considered that their B.Tech degrees are valid degrees. Having so clarified as regards the advantage and benefits that may have accrued to the petitioner, their B.Tech degree obtained from the IASE Rajasthan, we are now referring the respondents to act upon the list of 30.10.2017 by construing the B.Tech degree of the petitioners in the manner as indicated above.
16. The requirement be done within a period of 3(three) months from the date of receipt of a Page No.# 10/10 certified copy of this order.
17. Writ petitions stand allowed in the manner indicated above.
JUDGE Comparing Assistant