Punjab-Haryana High Court
Jatinder Singh And Others vs State Of Punjab And Others on 7 January, 2020
Equivalent citations: AIRONLINE 2020 P AND H 5
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No.28211 of 2018 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.28211 of 2018 (O&M)
Reserved on:-26.09.2019
Date of pronouncement: 07.01.2020
Jatinder Singh and others
.......Petitioners
versus
State of Punjab and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
Present:- Mr. Aalok Jagga, Advocate for the petitioners.
Mr. Luvinder Sofat, AAG, Punjab.
Mr. Parminder Singh-1, Advocate for respondent
No.2/PSPCL.
Mr. Chetan Mittal, Senior Advocate with
Mr. Tribhawan Singla, Advocate for respondent No.3.
Mr. Salil Sabhlok, Advocate for respondent No.4.
Mr. D.S. Patwalia, Senior Advocate with
Mr. Kanan Malik, Advocate for respondent No.7.
Mr. Kanwaljeet Singh, Senior Advocate with
Mr. Pushpinder Kaushal, Advocate for
respondents No. 8,11 to 13, 19 and 26.
Mr. Pankaj Jain, Advocate for respondents
No. 6, 14, 17, 18, 20, 24, 25 and 28.
Mr. Rajesh Garg, Senior Advocate with
Ms. Nimrata Shergill, Advocate for respondents
No.9, 10, 15, 16, 21, 22, 23 and 29
*****
TEJINDER SINGH DHINDSA, J.(ORAL)
Petitioners by way of filing the instant petition have assailed the
criteria and modalities adopted by the 3rd respondent/All India Council for
Technical Education while conducting a validation test and declaration of
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result thereof in respect of candidates who had obtained the B.Tech Degree
between the years 2001 to 2005 by way of distance education mode.
A brief factual matrix would be necessary.
The petitioners and private respondents herein are engineers
serving under the Punjab State Power Corporation Limited. Issue as
regards validity of educational qualifications and B.Tech Degrees obtained
through distance education mode from four deemed to be Universities i.e.
Institute of Advance Study in Education (IASE), Sardarshahar
Rajasthan;(ii) JRN Rajasthan Vidyapeeth, Udaipur, Rajasthan; (iii)
Allahabad Agricultural Research Institute, Allahabad; (iv) Vinayaka
Mission Research Foundation, Salem, Tamil Nadu, during the session
2001 to 2005 came to be raised before this Court in CWP No.1640 of 2008
titled as Kartar Singh Vs. Union of India and others. It was submitted
that the afore-noticed Deemed to be Universities had set-up "study
centres" in violation of the regulations framed by the UGC and that such
study centres completely lacked infrastructure and facilities for courses in
engineering and that the programmes through distance education mode
were illegal and without approval. The writ petition was allowed by a
Division Bench of this Court vide judgment dated 06.11.2012 and the
relevant extract reads as follows:-
"184. In terms of the directions of the Commission it
was necessary for the Deemed to be Universities to
seek approval from AICTE. In view of the above, we
hold that the Deemed to be Universities have started
courses in technical education in violation of the
guidelines, instructions, circulars and regulations
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framed by the Commission not only when they started
such courses but also in establishing study centres
outside there territorial limits and in subjects for
which they were not granted Deemed to be
Universities status. Therefore, degrees awarded by
such Deemed to be Universities is an illegal act and
such illegality cannot be removed or cured by the
actions of either the commission or DEC".
It was further held as under:-
"190. In view of the above, we hold that the approval
granted by the Distance Education Council on
29.08.2007 to the Institutes in question is illegal and
unwarranted and beyond the scope of authority vested
in it. As a necessary consequence the degrees granted
by such Deemed to be Universities are illegal and the
candidates cannot be deemed to be qualified in the
purported subjects in the absence of approval from the
commission.
xxx xxx
Though the Court is sympathetic with the
cause of the students but the larger public interest
demands that the students, who have not got formal
education, should not be considered eligible for
appointment under the State."
The High Court of Orissa however took a divergent view
pertaining to a B-tech (Civil) Degree acquired by a candidate from a
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deemed to be University through Distance Education Mode in writ petition
Number 3848 of 2010 titled as Rabi Sankar Patro versus Orissa Lift
Irrigation Corporation Limited. Two sets of appeal thus arose, one from
the judgment passed by the High Court of Orissa and the other arising from
the decision of this Court in Kartar Singh's case (supra). The two sets of
appeals were clubbed together and were decided by the Hon'ble Supreme
Court on 03.11.2017 vide judgment in Orissa Lift Irrigation
Corporation Limited Vs. Rabi Sankar Patro and others (2018) 1 SCC-
468. The view taken by this Court in Kartar Singh's case (supra) was
upheld. It was held that the deemed Universities had been conducting the
distance education courses through off campus study centres without the
approval of the University Grants Commission and the All India Council
of Technical Education. It is further held that the action of conferring
degrees through distance education mode was without jurisdiction. Even
the ex-post facto approval granted by Distance Education Council (DEC)
was completely illegal. The Hon'ble Apex Court further observed that
since the UGC Guidelines had given liberty to the concerned deemed to be
Universities 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 session 2001-05, is protected. A view was
taken to grant a chance to the concerned students to have their ability
tested by authorities competent in that behalf. Accordingly it was directed
that all the degrees in engineering granted to students who were enrolled
during the academic sessions 2001-05 would stand suspended till they pass
an examination under the joint supervision of AICTE-UGC. AICTE was
directed to device within one month from the date of judgment modalities
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to conduct appropriate test/tests both in theory as well as in practicals for
the concerned students admitted during the academic session 2001-05,
covering all the concerned subjects. It was left entirely to the discretion of
AICTE to formulate modalities as it may think appropriate and the test (s)
were to be conducted in the National Institutes of Technology in the
respective states where the students were located. Choice was to be given
to the students to appear in the examination to be conducted ideally during
May-June 2019 or on such dates as AICTE was to determine. Not more
than two chances were to be afforded to the concerned students and if they
were not to pass the test/tests their degrees were to stand recalled and
cancelled. In the eventuality of the concerned candidate clearing the
test/tests all the advantages or benefits were to be restored.
Application thereafter came to be preferred seeking clarification
and modification of the directions issued by the Hon'ble Supreme Court in
its judgment and order dated 03.11.2017. Vide order dated 22.01.2018 the
Hon'ble Supreme Court as a one time relaxation in favour of those
candidates, who were enrolled during the academic years 2001-05 directed
that such candidates who wish to appear in the forth-coming test to be
conducted by AICTE in May and June 2018 and who exercise option to
appear in the test in terms of the judgment, they can retain the degrees in
question as also the advantages flowing therefrom till one month after the
declaration of the result of such test or till 31.07.2018, whichever is earlier.
Such relaxation was given as a one time exception so that those candidates
who have the ability and can pass the test in the first attempt itself should
not be put to inconvenience. The candidates who passed in the first attempt
were held entitled to retain all the advantages but if a candidate failed or
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chose not to appear, the directions in the main judgment were to apply
inasmuch as the degree and all advantages flowing therefrom were to stand
suspended and withdrawn.
Admittedly the private respondents herein had obtained their B-
tech Degrees from a deemed university through distance education mode in
the academic sessions 2001-05 and as such exercised their option to appear
in the test to be conducted by AICTE pursuant to the Hon'ble Supreme
Court directions contained in the judgement dated 03.11.2017.
The All India Council for Technical Education, issued a public
notice dated 25.01.2018 (Annexure P-5) laying down the modalities for the
examination to be conducted towards compliance of the directions issued
by the Hon'ble Supreme Court vide judgment dated 03.11.2017. In brief
the modalities, paper pattern and norms for B.E/B.Tech examination were
contained in the public notice dated 25.01.2018 and it was stipulated that
for Undergraduate Degree Programmes (B.E/B.Tech.) the candidates have
to appear in both theory (written) as well as practical examinations.
Candidates were required to pass both the exams (theory and practical)
separately. Minimum passing marks were 40% separately in theory and
practical. It was further laid down that if a candidates fails i.e.gets less
than 40% marks in either theory exams or practical exam, it shall be
considered as a failure and shall have to appear again in both theory and
practical exam. Only one more chance was to be afforded for such
candidate to re-appear in the qualifying exam (theory and practical both)
after a gap of six months. As regards paper pattern it was clarified that
questions in both the papers of the theory exam would be multiple choice
(MCQ) type and conducted on OMR sheets. There was to be no negative
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marking in the theory papers.
Pursuant to the public notice dated 25.01.2018 (Annexure P-5)
the examination was conducted on 03.06.2018 followed by practical
examination. On 20.06.2018 notice was issued by AICTE at Annexure P-6
stating that several grievances on the modalities of the examination
conducted were received and after examining the same, an expert
committee has recommended that "Marks of Theory and practical may be
combined to calculate 40 per cent qualifying marks". It was notified that
AICTE has accepted such recommendation of the expert committee.
Thereafter yet another public notice dated 24.09.2018 was issued by
AICTE (Annexure P-7) dealing with representations and grievances raised
at the hands of candidates who had appeared in the examination on
03.06.2018 and had remained unsuccessful. Vide such public notice a
decision was notified that while preparing the final result after the 2018 re-
appear examination, best of two scores (attained in the two examinations-
June and December 2018) in an individual paper (viz.) theory paper-I,
theory paper-II and practical shall be considered.
Apparently, after uploading the answer keys of the questions on
the website of AICTE certain representations were received and it was
found that some of the questions in the papers were incomplete/incorrect
etc. and accordingly AICTE took a decision to award marks to all students
in respect of such questions irrespective whether the questions were
attempted or not.
Based collectively on the afore-noticed sequence of events and
decisions taken by AICTE the private respondents herein who had
appeared in the examination conducted on 03.06.2018 cleared the same as
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per result attached at Annexure P-9. On 21.09.2018 (Annexure P-11) a
communication was issued by the employer i.e. Punjab State Power
Corporation Limited for consideration of grant of further service benefits
by taking the B-tech degrees obtained by the private respondents to be
valid based upon the result of the examination conducted by AICTE on
03.06.2018.
Petitioners are aggrieved of the mode and manner of change of
modalities by the AICTE pertaining to the validation test conducted on
03.06.2018 and pursuant to which the private respondents would now avail
service benefits under the relevant service regulations on the premise that
they possess a valid B.Tech Degree. It is the case of the petitioners that
such exercise would directly impact and adversely effect them.
Counsel for the petitioners has argued that without any challenge
having been made to the initial modalities laid down by AICTE in the
public notice dated 25.01.2018 (Annexure P-5) and the candidates
including the private respondents having participated in the examination
on 03.06.2018, the 3rd respondent i.e. AICTE in a completely illegal and
arbitrary manner has changed and diluted the modalities and which was
impermissible in law. It is urged that it is after conduct of the
examination, the rules of the game have been changed inasmuch as the
original requirement was for a candidate to obtain minimum of 40%
passing marks separately in theory and practical but such requirement has
been diluted after the examination to the effect that it would be sufficient
for a candidate to obtain 40% passing marks taking theory and practical
together so as to qualify the examination. It has been vehemently argued
that the action of AICTE is in direct contravention to the judgment of the
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Hon'ble Supreme Court dated 03.11.2017 (Annexure P-3). In this regard,
it has been contended that directions had been issued by the Hon'ble
Supreme Court to AICTE to frame the modalities and to thereafter conduct
the test so as to afford a chance to such candidates who had obtained the
B.tech Degree from the deemed universities through distance education
mode between the years 2001-05. However, no liberty had been granted
by the Hon'ble Supreme Court to alter and change the modalities after the
conduct of the examination. The action of AICTE in awarding marks
across the Board for questions that had been wrongly framed etc.
irrespective of the fact whether such questions had been attempted or not
by the candidates concerned has also been questioned by terming the same
as illogical and irrational. Yet another submission raised by counsel is that
engineering being a highly technical subject and the candidates being
holders of public posts, the objective of conducting the validation test was
to see whether the candidates in question have actually undertaken the
course of engineering or not. Under such circumstances bare minimum
standards were required to be maintained as per modalities initially laid
down vide public notice dated 25.01.2018 (Annexure P-5). It is contended
that by virtue of subsequent public notice at Annexures P-6 and P-7 the
modalities have been altered leading to dilution of standards and such
course of action cannot sustain.
Per contra learned Senior Counsel representing respondent No.3-
AICTE has submitted that certain unsuccessful candidates pertaining to the
test conducted on 03.06.2018 had filed writ petition (civil) No.952 of 2018
titled as Sanjay Kumar and another Vs. University Grants Commission and
another before the Hon'ble Supreme Court raising certain grievances and
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while declining to interfere in such writ petition vide order dated
14.09.2018, liberty had been granted to the petitioners therein to make an
appropriate representation to the AICTE and with a further direction to the
Council to consider the same expeditiously. It is contended that it was
towards compliance of such directions issued by the Hon'ble Supreme
Court on 14.09.2018 that a committee of senior academician from
Institutes of National Importance was constituted and the representations
were placed before such committee and it is on the recommendation of
such expert committee that the decision had been taken that while
preparing the final result after the re-appear examination to be held in
December 2018, best of two scores (attained in the two examinations i.e.
obtained in June 2018 and December2018) in an individual paper viz.
Theory Paper-I, Theory Paper-II and practical would be considered. It is
such decision which was notified vide public notice dated 24.09.2018
(Annexure P-7). The issuance of public notices at Annexures P-6 and P-7
post holding of the examination is stated to be in inconformity with the
directions of the Hon'ble Supreme Court contained in the judgment dated
03.11.2017 and whereunder as per Senior Counsel complete and full
discretion was vested with the AICTE to finalize all the modalities for
conducting the examination. Learned Senior counsel further submits that
after the answer keys had been uploaded on the site of AICTE, a large
number of representations had been received. The representations were
then placed before an expert committee which in turn had opined that
certain questions in the papers were incomplete/incorrect/having double
answers etc.and accordingly pertaining to such questions a decision was
taken in principle to award marks to all students across the Board. It has
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been argued that such decision was taken as per recommendations of the
subject experts and which should not call for any interference at the hands
of this Court in exercise of its extraordinary writ jurisdiction under Article
226 of the Constitution of India.
An attempt was also made by learned Senior Counsel to impress
upon this Court that the conduct of test as per directions of the Hon'ble
Supreme Court would be in the nature of a validation test so as to assess
the ability of candidates who had already obtained the B.tech Degree from
a deemed university through the distance education mode and as such,
such test necessarily has to be viewed only as a "qualifying test", whereas
the submissions advanced on behalf of the petitioners lay much emphasis
on merit. It is urged that viewed from such perspective the challenge as
regards change of modalities after conducting of the examination as also
award of marks to all candidates pertaining to certain questions which were
not well-drafted/carried inappropriate answers irrespective of such
questions having been attempted or not is bound to fail.
Counsel representing private respondents have filed separate
written statements. Apart from reiterating the submissions advanced on
behalf of AICTE, certain preliminary objections with regard to
maintainability and locus of the petitioners to file the instant writ petition
have been raised. In this regard it has been contended that petitioners
were neither the candidates in the examination process conducted by
AICTE under question and neither are they effected by such examination
process in any manner and as such the petitioners would have no locus to
even file the instant petition. Objections with regard to maintainability has
been raised by submitting that since petitioners are claiming violation of
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the directions issued by the Hon'ble Supreme Court in the judgement dated
03.11.2017 (Annexure P-3) the remedy available would be under the
contempt of Courts Act and not by way of filing of a writ petition. The
writ petition is further stated to be bad for non-joinder of necessary parties.
It has been urged by counsel representing the private respondents that the
petitioners have deliberately not impleaded the universities from where the
private respondents had obtained their B.tech degrees and further more all
the candidates who had participated in the examination held on 03.06.2018
conducted by AICTE and declared successful have not been arrayed as
party respondents inspite of being necessary parties. Accordingly it is
prayed for dismissed of the writ petition.
Counsel for the parties have been heard at length and the
pleadings on record have been perused.
The Hon'ble Supreme Court in the case titled as Orissa Lift
Irrigation Corporation Limited Vs. Rabi Sankar Patro and others
decided on 03.11.2017, while holding the B.Tech Degrees obtained from
the four Deemed to be Universities through distance education mode to be
bad in law had taken a sympathetic view and as a one time measure
directed the 3rd respondent/AICTE to conduct an examination of these
candidates. The directions in such regard were in the following terms:-
"47. The AICTE is directed to devise within one month
from the date of this judgment modalities to conduct
appropriate test/tests both in written examination as
well as in practicals for the concerned students
admitted during the academic sessions 2001-2005
covering all the concerned subjects. It is entirely left
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to the discretion of AICTE to come out with such
modalities as it may think appropriate and the tests in
that behalf shall be conducted in the National
Institutes of Technology in respective States wherever
the students are located. The choice may be given to
the students to appear at the examination which
ideally should be conducted during May-June, 2018 or
on such dates as AICTE may determine. Not more
than two chances be given to the concerned students
and if they do not pass the test/tests their degrees shall
stand recalled and cancelled. If a particular student
does not wish to appear in the test/tests, the entire
money deposited by such student towards tuition and
other charges shall be refunded to that student by the
concerned Deemed to be University within a month of
the exercise of such option. The students be given time
till 15th of Jaunary, 2018 to exercise such option. The
entire expenditure for conducting the test/tests in
respect of students who wish to undergo test/tests shall
be recovered from the concerned Deemed to be
Universitites by 31.03.2018. If they clear the test/tests
within the stipulated time, all the advantages or
benefit shall be restored to the concerned candidates.
We make it clear at the cost of repetition that if the
concerned candidates do not clear the test/tests within
the time stipulated or choose not to appear at the
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test/tests, their degrees in Engineering through
distance education shall stand recalled and cancelled.
It goes without saying that any promotion or
advancement in career on the basis of such degree
shall also stand withdrawn, however any monetary
benefits or advantages in that behalf shall not be
recovered from them."
xx xx xx xx xx
53. Accordingly we direct:
I. 1994 AICTER Regulations, do apply to
Deemed to be Universitites and the Deemed to be
Universities in the present matter were not justified in
introducing any new courses in Technical Education
without the approval of AICTE.
II. Insofar as candidates enrolled during the
Academic Sessions 2001-2005, in the present case the
ex post facto approvals granted by UGC and their
concerned authorities are set aside.
III. Consequent to aforesaid direction No.II, all
the degrees in Engineering awarded by concerned
Deemed to be Universities stand suspended.
IV. The AICTE shall devise the modalities to
conduct an appropriate test/tests as indicated in Para
47 above. The option be given to the concerned
students whose degrees stand suspended by
15.01.2018 to appear at the test/tests to be conducted
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in accordance with the directions in Para 47 above.
Students be given not more than two chances to clear
test/tests and if they do not successfully clear the
test/tests within the stipulated time, their degrees shall
stand cancelled and all the advantages shall stand
withdrawn as stated in Paras 46 and 47 above. The
entire expenditure for conducting the test/tests shall be
recovered from the concerned Deemed to be
Universities by 31.03.2018.
V. Those students who do not wish to exercise
the option, shall be refunded entire money deposited
by them towards tuition fee and other charges within
one month of the exercise of such option. Needless to
say their degrees shall stand cancelled and all
advantages/benefits shall stand withdrawn as
mentioned in Para 47.
VI. If the students clear the test/tests within the
stipulated time, all the advantages/benefits shall be
restored to them and their degrees will stand revived
fully.
VII. As regards students who were admitted after
the Academic Sessions 2001-2005, their degrees in
Engineering awarded by the concerned Deemed to be
Universities through distance education mode stand
recalled and be treated as cancelled. All benefits
secured by such candidates shall stand withdrawn as
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indicated in Para 48 above. However, the entire
amount paid by such students to the concerned
Deemed to be Universities towards tuition fees and
other expenditure shall be returned by the concerned
Deemed to be Universities by 31.05.2018, as indicated
in Para 48.
VIII. By 31.05.2018 all the concerned Deemed to
be Universities shall refund the sums indicated above
in VII and an appropriate affidavit to that extent shall
be filed with UGC within a week thereafter.
IX. We direct the CBI to carry out thorough
investigation into the conduct of the concerned
officials who dealt with the matters and went about the
granting permissions against the policy statement, as
indicated in Para 49 above and into the conduct of
institutions who abused their position to advance their
commercial interest illegally. Appropriate steps can
thereafter be taken after culmination of such
investigation.
X. The UGC shall also consider whether the
Deemed to be University status enjoyed by JRN, AAI,
IASE and VMRF calls for any withdrawal and conduct
an inquiry in that behalf by 30.06.2018 as indicated
above. If the moneys, as directed above are not
refunded to the concerned students that factor shall be
taken into account while conducting such exercise.
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XI. We restrain all Deemed to be Universities to
carry on any courses in distance education mode from
the Academic Sessions 2018-2019 onwards unless and
until it is permissible to conduct such courses in
distance education mode and specify permissions are
granted by the concerned statutory/regulatory
authorities in respect of each of those courses and
unless the off-campus Centres/Study Centres are
individually inspected and found adequate by the
concerned Statutory Authorities. The approvals have
to be course specific.
XII. The UGC is further directed to take
appropriate steps and implement Section 23 of the
UGC Act and restrain Deemed to be Universities from
using the word 'University' within one month from
today.
XIII. The Union of India may constitute a three
members Committee comprising of eminent persons
who have held high positions in the field of education,
investigation, administration or law at national level
within one month. The Committee may examine the
issues indicated above and suggest a road map for
strengthening and setting up of oversight and
regulatory mechanism in the relevant field of higher
education and allied issues within six months. The
Committee may also suggest oversight mechanism to
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regulate the Deemed to be Universities. The Union of
India may examine the said report and take such
action as may be considered appropriate within one
month thereafter and file an affidavit in this Court of
the action taken on or before August 31, 2018. the
matter shall be placed for consideration of this aspect
on 11.09.2018."
Towards compliance of such directions the modalities for the
examination were duly framed and a public notice dated 25.01.2018 at
Annexure P-5 were issued by AICTE. A bare perusal of the same would
reveal that while finalizing the curriculum for the proposed examination
due consideration was given to the aspect that the curriculum should
comprise of mainly basic/foundation courses as also the core courses the
knowledge of which is highly essential for being an Undergraduate
Engineer (B.Tech) or Post Graduate Engineer (M.Tech). A list of 50
practicals for Undergraduate and 25 for Postgraduate courses were
finalized and uploaded on the AICTE website and out of these 50 and 25
practicals respectively, two practicals were to be performed by the
candidates. It was further decided that a candidate has to appear both in
written and practical examination and has to secure 40% marks separately
in both theory and practical examinations and the questions in both the
theory papers were to be of multiple choice and there was no negative
marking. It was clarified in clear terms in the public notice dated
25.01.2018 (Annexure P-5) that if a candidate fails to secure the minimum
bench mark of 40% marks in either theory exam or practical exam, it shall
be considered as a failure and such candidate shall have to appear again in
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both theory and practical exam. Only one more chance shall be given to
such candidate to re-appear in the qualifying exam (theory and practical
both) after a gap of 6 months. No further chance shall be given to the
candidate in case of failure in the second attempt/re-appear chance. After
laying down the modalities as afore-noticed the examination for both
Undergraduate and Postgraduate in theory as well as in practical were
conducted between 3rd of June 2018 to 12th of June 2018. It is after
conduct of the examination a public notice dated 20.06.2018 at Annexure
P-6 was issued, changing the modality and stating that the candidates now
need to secure 40% marks in theory and practical exams taken together so
as to be treated as qualified. A second change in modality was notified
vide public notice dated 24.09.2018 (Annexure P-7) whereby the AICTE is
stated to have accepted a grievance put forth by the candidates and decided
that while preparing the final result after the forthcoming December
2018/re-appear examination best of two scores i.e. obtained in June 2018
and December 2018 in an individual paper viz. Theory Paper-I, Theory
Paper-II and practical shall be considered.
The question that arises for consideration is whether the
modality and yardstick for successfully negotiating the examination and
which stood duly notified vide public notice dated 25.01.2018 (Annexure
P-5) could be altered and diluted after conduct of the examination?
In Maharashtra State Road Transport Corporation Vs.
Rajendra Bhim Rao Mandve (2001) 10 SCC 51, the Hon'ble Supreme
Court had observed that the rules of the game i.e. the criteria for selection
cannot be altered by the authorities concerned in the middle or after the
process of selection has commenced.
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In K. Manjusree Vs. State of A.P. and another (2008) 3 SCC
512, the Hon'ble Supreme Court was examining the selection process as
regards 10 posts of District and Sessions Judges (Grade-II) in the Andhra
Pradesh State Higher Judicial Service initiated vide advertisement dated
28.05.2004. In such matter the Selection Committee prescribed minimum
marks for interview but such decision was taken after commencement of
the selection process. Holding the same to be bad in law it was held as
follows:-
"29. xxxx xxxx xxxx
If the selection committee prescribed minimum marks
only for the written examination, before the
commencement of selection process, it cannot either
during the selection process or after the selection
process, add an additional requirement that the
candidates should also secure minimum marks in the
interview. What we have found to be illegal is
changing the criteria after completion of the selection
process, when the entire selection proceeded on the
basis that there will be no minimum marks for the
interview."
In Hemani Malhotra Vs. High Court of Delhi 2008 (5) SCR
1066, the Hon'ble Supreme Court was examining the selection process as
regards direct recruitment to the Delhi Higher Judicial Services and where
the written examination was held on 12.03.2006. The precise question
which came to be formulated and examined by the Hon'ble Apex Court
was as to whether introduction of the requirement of minimum marks for
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interview, after the entire selection process was completed would amount
to changing the rules of the game after the game was played. Reiterating
the view taken in K.Manjusree's case (supra) it was observed that the
authority concerned can prescribe minimum marks both for written
examination and viva voce, but if minimum marks are not prescribed for
viva voce before the commencing of the selection process, the authority
concerned cannot either during the selection process or after the selection
process add an additional requirement/qualification that the candidate
should also secure minimum marks in the interview.
Adverting to the facts of the present case, it is the pleaded case
of AICTE in the written statement that in pursuance to the directions
issued by the Hon'ble Supreme Court in the judgment dated 03.11.2017 in
Orissa Lift Irrigation Corporation Limited's case (supra), an expert
committee was constituted on 20.11.2017 to device modalities and other
details for conduct of the examination. On 25.01.2018, the expert
committee of AICTE finalized the modalities, norms and syllabus of the
examination in respect of proposed examination and posted the same on
the AICTE website. In such regard public notice dated 25.01.2018
(Annexure P-5) was issued. It is in pursuance to such modalities having
been finalized that the examination (theory as well as practical) was
conducted between 3rd of June 2018 to 12th of June 2018. Under such
circumstances, it was not open for the AICTE to have altered the
modalities/yardstick for qualifying the examination after the conduct of the
examination. Undoubtedly, complete discretion had been vested with the
AICTE to frame the modalities. Such discretion stood exercised pursuant
to an expert committee having been constituted and such committee having
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deliberated upon the matter and modalities being put in public domain vide
public notice dated 25.01.2018 (Annexure P-5). After conduct of the
examination between 3rd of June 2018 to 12th of June 2018, the
modalities/yardstick could not be altered as the same would clearly amount
to changing the rules of the game after the game had been played.
At this stage, it would be apposite to take note that a number of
writ petitions came to be filed in the High Court of Delhi at the hands of
candidates who were B.Tech Degree holders from the institute of Advance
Studies in Education, Sardarshahar, Rajasthan, raising a challenge to the
modalities issued vide public notice dated 25.01.2018 at Annexure P-5. A
common prayer in the writ petitions was for issuance of an order, writ or
direction to rationalise the modality of examination and for the syllabus of
the examination to be held on 3rd of June 2018 to be reduced so as to bring
the same inconsonance with what the candidates perceived to be the
syllabus of the B.Tech/M.Tech Degree course in relation to the years they
underwent their studies and received their respective degrees. Such prayer
was declined and the writ petitions were dismissed by the High Court of
Delhi vide common judgments dated 21.05.2018 (placed on record as
Annexure R/9-3 alongwith the written statement filed on behalf of
respondents No.9, 10, 15, 16, 21 to 23 and 29). Inspite of the modalities
contained in the public notice dated 25.01.2018 (Annexure P-5) having
been upheld by the High Court of Delhi, AICTE has chosen to change the
modality/yardsticks and dilute the same after conduct of the examination.
Such course of action adopted by the AICTE cannot be approved.
AICTE has placed heavy reliance upon order dated 14.09.2018
passed by the Hon'ble Supreme Court of India while dismissing writ
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petition (civil) No. 952 of 2018 titled as Sanjay Kumar and others Vs.
University Grants Commission and another in support of its action. The
order dated 14.09.2018 in Sanjay Kumar's case (supra) reads as follows:-
"SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Writ Petition (s) (Civil) No(s). 952/2018
SANJAY KUMAR & ORS.
Petitioner(s)
VERSUS
UNIVERSITY GRANTS COMMISSION & ANR
Respondent (s)
Date : 14-09-2018 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT
HON'BLE MR. JUSTICE ASHOK BHUSHAN
For Petitioner(s) Mr. Siddharth Luthra, Sr. Adv.
Mr. Praveen Agrawal, AOR
For Respondent (s)
UPON hearing the counsel the Court made the following
ORDER
We do not see any reason to interfere in the petition. The writ petition is accordingly, dismissed. Pending applications, if any, stand disposed of.
We however, give liberty to the petitioners to make an appropriate representation to AICTE. If the representation is made within two weeks from today, the AICTE is directed to consider it expeditiously.
(B.PARVATHI) (RAJINDER KAUR)
COURT MASTER BRANCH OFFICER
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Contention raised by learned Senior Counsel representing AICTE that the change of modality/yardstick was in terms of the liberty granted by the Hon'ble Apex Court vide order dated 14.09.2018 afore- reproduced is found to be wholly misconceived on three counts i.e.(i) the first change of modality and thereby requiring a candidate to secure the minimum bench mark of 40% marks by taking theory and practical exams together was notified vide public notice dated 20.06.2018 at Annexure P-6. The order passed by the Hon'ble Apex Court giving liberty to the petitioners in Sanjay Kumar's case (supra) to make an appropriate representation to AICTE was passed much later in point of time i.e. on 14.09.2018 and possibly cannot be invoked to justify change of modality notified on 20.06.2018 (Annexure P-6);(ii) as per order dated 14.09.2018 liberty was given to the petitioners in Sanjay Kumar's case (supra) to make an appropriate representation within two weeks from the date of passing of the order and directions were issued to AICTE to consider the same expeditiously. Such liberty granted to the petitioners therein has to be read in co-relation to the prayers raised in that petition. Afterall, such liberty had been granted while declining to interfere in the petition. It would be relevant to take note that the petitioners in Sanjay Kumar's case (supra) were the unsuccessful candidates in the examination conducted between 3rd of June 2018 to 12th of June 2018. They had prayed before the Hon'ble Apex Court for issuance of direction to AICTE to revise and fix the pass percentage at 30% as also to re-examine the petitioners by dividing the entire examination into two parts being theory and practical papers (80% marks) and internal assessment to be conducted by the Universities concerned (20% marks). In the considered view of this Court 24 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 25 the liberty granted to the petitioners therein would have to be construed so as to make a representation to AICTE against the backdrop of the prayers raised in the petition and for AICTE then to deal with the same. The assailed change of modality/yardstick in the instant petition vide Annexures P-6 and P-7, is completely alien to the prayers raised before the Hon'ble Apex Court and which led to the passing of the order dated 14.09.2018 in Writ Petition (Civil) No.952 of 2018; (iii) in any event the liberty granted vide order dated 14.09.2018 by the Hon'ble Apex Court in Sanjay Kumar's case (supra) and the directions issued to AICTE to consider the representation made by the petitioners therein would not afford to AICTE a licence to take decisions contrary to settled principles of law. As has been noticed hereinabove AICTE, in the present case has proceeded to make alterations in the modality/yardstick for qualifying the examination after conduct of the same and which would be against the dictum laid down by the Hon'ble Supreme Court in K.Manjusree and Himani Malhotra's case (supra).
On yet another aspect AICTE is found wanting. After conduct of the examination between 3rd of June to 12th of June 2018, the answer keys of the questions were uploaded on the AICTE website and objections were invited. The objections came to be dealt by an expert committee. As per stand of AICTE certain questions in the examination were found to be incomplete/incorrect and carrying double answers etc. and as such a decision was then taken to award marks pertaining to such questions to all students across the Board. The issue in the present case is not as regards taking a different view as opposed to the experts in the field as regards certain questions having not been framed properly or appropriate answer 25 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 26 options not being offered. In such matters this Court must exercise restraint and would be reluctant to enter the thicket of correctness of the answer keys as also framing of questions. Ordinarily such matters should be left to the experts in the field. Be that as it may the precise issue that arises is that even if the view of the experts pertaining to certain inappropriate questions/answer options was to prevail, is the benefit in relation to such questions to be granted across the Board or confined to such candidates who had attempted such questions. Such issue is no longer res integra. In Guru Nank Dev University Vs. Saumil Garg and others (2005) 13 SCC 749 such issue came to be dealt with by the Hon'ble Supreme Court pertaining to the Punjab Medical Entrance Test conducted by Guru Nank Dev University, and it was held as under:-
"There is yet another problem, that of seven questions which are so vague that they are incapable of having a correct answer. The appellant University, in respect of those seven questions, has given the credit to all the students who had participated in the entrance test irrespective of whether someone had answered the questions or not. We do not think that that is the proper course to follow. It is wholly unjust to give marks to a student who did not even attempt to answer those questions. This course would mean that a student who did not answer say all the seven questions would still get 28 marks, each correct answer having four marks. The reasonable procedure to be followed, in our opinion, would be to give credit only to those
26 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 27 who attempted the said questions or some of them." In the present case, as per modalities framed and put in public domain vide public notice dated 25.01.2018 (Annexure P-5) the theory examination was to consist of multiple choice questions carrying 1/2 marks. It was clearly stipulated that there would be no negative marking. In other words there was no occasion for any candidate to shy away from attempting a question inspite of having entertained a thought that the question itself is not property drafted or does not carry appropriate answer options. Under such circumstances a candidate who chose not to attempt the offending question(s) could not have been granted the benefit of additional marks in relation thereto. Such view is being taken as per dictum laid down in Saumil Garg's case (supra) wherein also the test comprised of multiple choice questions and there was no negative marking. It is accordingly held that while computing the result, AICTE ought to have confined the benefit of award of additional marks in relation to the offending questions only to such candidates who had attempted the same.
This Court is also of the view that the impugned action of the AICTE in altering the modalities and changing the yardsticks vide Annexures P-6 and P-7 after conduct of the examination tantamounts to dilution of standards. It would be crucial to take note that the Hon'ble Supreme Court while pronouncing on the validity of degrees in Engineering awarded by the four deemed to be Universities through distance education mode pertaining to the years 2001 to 2005 had noticed the following shortcomings and infirmities:-
a) The concerned Deemed to be Universities namely AAI, JRN and IASE started distance education 27 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 28 programmes leading to degrees in Engineering, outside their field of specialization. Such programmes were started without taking any approval from UGC and/or AICTE and when there was no approved engineering college or faculty at their main campus.
b) Further, such programmes were being conducted in Study Centres, majority of which were not maintained and managed by the concerned Deemed to be Universities. The demonstrators/lecturers employed at such Study Centres were not on the payroll of and were not selected by such Deemed to be Universities.
c) Those Study Centres were not inspected at any stage, nor any facilities therein were assessed to see if they meet the standards prescribed for imparting courses in Engineering. Similarly, no authority had checked what kind of courses were being conducted nor was there any inspection at the time the examinations were said to have been conducted.
d) The Visiting Committee of DEC had visited the main campus of the concerned Deemed to be Universities and seen the record but not visited any Study Centres. No member or representative of AICTE was part of such Visiting Committee, the report of which was simply endorsed by the Joint Committee of UGC-DEC-AICTE.
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e) Under 1985 UGC Regulations, minimum of
180 actual teaching days in an academic year with 40 clock hours every week are required for courses leading to degrees of B.A./B.Sc./B.Com. Assuming that these regulations apply to courses in Engineering, this requirement would be more pronounced and crucial when courses leading to award of degrees in Engineering are in issue. Such technological programmes by very nature require extensive practical training.
f) The application preferred by JRN for Ex-
post-facto approval shows that its Study Centres for programmes leading to degrees in Engineering were located in institutions which themselves were running independent courses. If 180 actual teaching days with 40 clock hours per week is the requirement which must be satisfied by those institutions for running their own courses, no scope is left for any outside institution such as JRN for using such facilities for imparting any courses in technical education. If the facilities were sufficient to justify the independent strength of those institutions, the additional burden caused by students of JRN could not possibly be accommodated.
g) The inspection to ensure maintenance of standards was specifically contemplated under the Notification of MHRD issued on 05.04.2006. Para 10 29 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 30 of the Memorandum of Undertaking dated 10.05.2007 also spoke of inspection for the purposes of continuation/withdrawal of approval. In the teeth of these policy statements, the Joint Committee of AICTE-DEC-UGC endorsed its acceptance on 07.08.2007 without there being inspections at all.
h) Aforesaid aspects regarding complete absence of any inspection become crucial particularly when communications of DEC and UGC issued from time to time highlighted complaints regarding those Deemed to be Universities.
i) As far as second period is concerned, again no inspections, at any stage, were carried out. The provisional approval dated 03.09.2007 by DEC was completely mechanical and the assertion therein that DEC would not insist on territorial jurisdiction, was against the mandate of MHRD in its letter dated 29.07.2009 and of the decision in the ninth meeting of the Joint Committee of UGC-DEC-AICTE. The consequent approval dated 13.11.2007 by UGC is equally mechanical and suffers from same infirmity.
j) Though decision was taken in the meeting held on 19.02.2008 to review cases of ex-post-facto approvals within a month, nothing was done. In fact, the first communication thereafter was three months after on 12.05.2008. It spoke nothing about review of 30 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 31 ex-post-facto approval already granted. At this juncture, the logical exercise ought to have been to consider and assess the claim course-wise, cause inspections and see whether ex-post-facto approvals were rightly granted or not. However, that was not to be.
k) On the other hand, UGC in its meeting of 21.05.2008 went on to ratify the decision of the Chairman to accord approval. At the same time, in response to application dated 08.05.2008 by JRN, DEC went on to grant provisional recognition for the year 2008-09.
l) In spite of clear instructions by MHRD in its letter dated 29.07.2009 to withdraw permissions already given to conduct B.Tech/B.E. Programmes through distance education and not to admit students for current year, no steps were undertaken to implement those directions and withdraw permissions already given.
m) Even after dissolution of DEC and Public Notice dated 27.06.2013 issued by UGC that no deemed to be University would be allowed to take courses through distance education, when JRN again applied to UGC for grant of approval, no reply was given by UGC; on which score JRN was able to get an interim order dated 26.11.2013 from the High Court.
31 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 32 As a matter of fact in the face of Regulation 18 of 2010 UGC Regulations, such a request or application could never have been considered.
n) Similar is the case with regard to interim orders dated 17.12.2015 and 15.09.2016. Thus JRN could continue admitting standards despite aforementioned Policy statements, on the strength of interim orders.
o) During this period, the High Court of
Punjab and Haryana vide its decision dated
06.11.2012 had already held the degrees in
Engineering awarded by Deemed to be Universities through distance education mode to be invalid. That decision was appealed against by students and IASE but not by JRN. In any case, the Interim Order of this Court only protected concerned students whose degrees stood invalidated.
p) If interim orders dated 26.11.2013, 17.11.2015 and 15.09.2016 by one High Court could become a justification for continuing to conduct courses leading to degrees in Engineering through distance education mode across the country, the final declaration issued by another High Court on 06.11.2012 and the policy statements referred to earlier, had greater binding force.
q) One one hand it was being proclaimed by
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the concerned authorities in their public notices like 27.06.2008 and 27.06.2013 or policy statements such as 2010 UGC Guidelines that no Deemed to be University will be allowed to conduct courses in distance education mode, and on the other hand DEC kept granting provisional approval and UGC helped the concerned Deemed to be University by its total inaction.
Furthermore, upon applications having been preferred seeking clarification and modification of the directions issued vide judgment dated 03.11.2017, the Hon'ble Supreme Court, had taken note of the general submission advanced on behalf of the candidates that after securing the degrees in engineering through distance education mode, they have advanced in career and their ability had been tested at various levels and as such requirement of passing the examination in terms of the main judgement be dispensed with. While rejecting such submission the Hon'ble Apex Court had observed "the infirmity in their degrees is basic and fundamental and cannot be wished away."
It was only towards taking a sympathetic view, the engineering degrees held by the candidates were ordered to be suspended and as a one time measure AICTE was directed to frame modalities and to conduct a test. Stand projected on behalf of AICTE is that towards compliance of the judgement and directions issued by the Hon'ble Supreme Court, the first meeting of the Executive Committee of AICTE was held on 15.11.2017 and an Expert Committee was constituted on 20.11.2017 consisting of Senior Professors of NITs and National Institute of Technology Teachers 33 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 34 Training and Research (NITTTR) to device modalities and other details for conduct of the forthcoming examination. A meeting of the Vice Chancellors/representatives of all the four deemed to be universities was also called upon alongwith UGC Officers so that appropriate data of the students enrolled in these universities during session 2011 to 2005 in Engineering courses conducted through distance education mode be obtained. It goes without saying that it is after due deliberations at the hands of the expert committee comprising of Senior Professors of NITs and National Institute of Technical Teachers Training and Research that the modalities were framed and issued vide public notice dated 25.01.2018 (Annexure P-5). Even the All India Council for Technical Education Act 1987 was enacted with the object of establishment of an All India Council for Technical Education to ensure planned quantitative growth and for regulation as also proper maintenance of norms and standards in the technical education system. Section 10 of the Act regulates the function of the council and mandates that it shall be the duty of the council to take all such steps that would ensure coordinated and integrated development of technical education and maintenance of standards. Section 10 mandates the council to evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education as also to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examination. Further, the council is obligated to take all necessary steps to prevent commercialisation of technical education. Against such avowed object for which AICTE was set up and coupled with the infirmities and shortcomings noticed by the Hon'ble 34 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 35 Supreme Court leading to the findings being recorded that the B.Tech Degrees, obtained by candidates from the four Deemed to be Universities by way of distance mode of education are not valid, it was imperative for AICTE to have framed relevant and strict modalities so as to conduct an examination and which was primarily in the nature of validation of the degrees obtained by the candidates in question. The Hon'ble Supreme Court in such regard had given complete discretion to AICTE to frame modalities for conduct of the examination. Apparently it is towards exercise of such discretion that the modality and yardsticks for qualifying the examination were laid down in the public notice dated 25.01.2018 at Annexure P-5. Alteration and dilution of the same after conduct of the examination between 03.06.2018 to 12.06.2018 can only be viewed as dilution of standards and which militates against the very object for which the examination had been directed to be held by the Hon'ble Apex Court.
An objection has been raised with regard to non joinder of necessary parities. It has been asserted on behalf of the respondents that all the candidates who appeared and qualified the examination ought to have been arrayed as party respondents and in their absence no relief can be granted.
Such objection is not well founded.
In the case of Parbodh Verma Vs. State of U.P. (1984) 4 SCC 251, the Hon'ble Supreme Court had observed that the High Court could not hear and dispose of a writ petition under Article 226 without the persons who would be vitally effected by its judgment being party respondents. It would be significant to notice that the Hon'ble Apex Court had further observed that if some of the effected persons are before the 35 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 36 High Court as respondents in a representative capacity then it would be sufficient in case their numbers is unmanagable and it is time consuming to serve by joining each one of them as respondents individually. In the present case AICTE in its written statement has disclosed that at the Undergraduate level/B.Tech Degree, 4960 candidates had registered and out of which 3645 had actually appeared in the examination that was conducted in the month of June 2018 and out of which 1448 have qualified. This Court finds merit in the submission advanced on behalf of the petitioners that it was not feasible to implead all the qualified candidates keeping in view their large numbers. In any event the qualified candidates are before this Court in a representative capacity. Their case has been put forth in terms of filing of written statements and by advancing submissions. Furthermore, it is a matter where no relief has been sought against any particular candidate or a question has been raised with regard to the eligibility of an individual candidate. A larger issue has been raised with regard to the manner and methodology adopted by the AICTE while conducting the examination towards purported compliance of the judgment of the Hon'ble Supreme Court in Orissa Lift Irrigation Corporation Limited's case (supra).
Even as regards locus and maintainability of the instant petition, there is no dispute that the petitioners have obtained their B.Tech Degrees from recognized institutions. In the written statement filed on behalf of respondent No.2/Punjab State Power Corporation Limited, it has been clearly stated that as many as 25 employees of the Corporation have cleared the examination and as such they would now be entitled to benefits such as seniority under the 40% AMIE/B.Tech Degree quota under the 36 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 37 service regulations. Clearly if the process of conduct of the examination and declaration of result thereof by AICTE is held to be valid, the petitioners would be adversely impacted.
It is after passing of the judgment dated 03.11.2017 by the Hon'ble Supreme Court that the AICTE has taken certain decisions in terms of issuance of public notices at Annexures P-6 and P-7 and thereafter has declared the result. Such subsequent decisions were certainly open to be assailed by the petitioners by way of filing of a writ petition on grounds available as per law.
In view of the above, the objection raised by the respondents questioning the locus standi of the petitions in having filed the instant writ petition is found to be without merit.
For the reasons recorded above, writ petition is allowed. Action of AICTE in changing the modality/yardstick after conduct of the examination is held to be bad in law. Public notice dated 20.06.2018 at Annexure P-6 to the extent of change of modality is quashed. Consequent thereto even the result of the examination by applying change of modality as per Annexure P-6 is set aside.
AICTE is directed to re-compute the result of the examination strictly as per modality/yardstick contained in the public notice dated 25.01.2018 (Annexure P-5). While re-computing the result, AICTE would now confine the benefit of additional marks qua the discrepant questions only to the candidates who had attempted the same. Such exercise be completed and revised result be notified within a period of four weeks from today. Further course would be as per directions issued by the Hon'ble Supreme Court in Orissa Lift Irrigation Corporation Limited's 37 of 38 ::: Downloaded on - 11-01-2020 23:21:31 ::: CWP No.28211 of 2018 (O&M) 38 case (supra) and subsequent order dated 22.01.2018 (Annexure P-4).
Writ petition is allowed in the aforesaid terms. Pending application(s), if any, shall also stand disposed of.
(TEJINDER SINGH DHINDSA) JUDGE January 07, 2020 shweta Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 38 of 38 ::: Downloaded on - 11-01-2020 23:21:31 :::