Central Administrative Tribunal - Delhi
Delhi Metro Rail Corporation Ltd vs Sh. Vikrant Shokhanda on 12 September, 2011
Central Administrative Tribunal Principal Bench, New Delhi. RA-66/2011 in OA-1210/2010 New Delhi this the 12th day of September, 2011. Honble Dr. A.K. Mishra, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Delhi Metro Rail Corporation Ltd. Metro Bhawan, Fire Brigade Lane, Barakhamba Road, New Delhi-1. . Review Applicant (through Sh. Chandan Kumar, Advocate) Versus Sh. Vikrant Shokhanda, S/o sh. Inderjeet Singh, R/o Flat No.23, Krishi Apartments, Plot No.4, Sector-13, Rohini, Delhi-85. . Respondent (through Sh. Jasbir Singh Malik, Advocate) O R D E R
Dr. A.K. Mishra, Member (A) This application for review has been made against the order dated 19.11.2010 in OA-1210/2010. The respondent in the original application had filed Writ Petition (C) No. 164/2011 which was dismissed on 12.01.2011 as not pressed. The writ petitioner withdrew the Writ Petition in order to seek review of the aforesaid order of this Tribunal and liberty was granted by the Honble High Court for the purpose; hence this RA.
2. At the time of hearing, learned counsel for the respondent in RA (applicant in OA) raised the preliminary objection of limitation. According to him, the RA should have been filed within the prescribed period of one month from the date of passing of the impugned order dated 19.11.2010. The applicant has also not filed any application for condonation of delay. We find that the Honble High court had specifically granted liberty to the review applicant not only to withdraw the Writ Petition but also to seek review. Admittedly, the review application has been filed within one month from the date of passing of the order by the Honble High Court. Therefore, we do not find that the review application is barred by limitation; the objection raised is over-ruled and the R.A. is taken up for hearing on merit.
3. Learned counsel for the review applicant placed two submissions for consideration:-
(i) The Tribunal had not taken into account the second paragraph of the letter dated 15.03.2010 of Distance Education Council (DEC) of Indira Gandhi National Open University which clearly stated that the recognition granted by DEC earlier to IASE was only by way of institutional recognition but not one of programme approval. It was stated categorically in this letter that the DEC had not accorded approval to any specific programme such as the diploma/degree in Electrical Engineering, Electronics & Communication and Telecommunication offered by the deemed university and since such technical programmes also required approval of the Apex body in the country, the University was advised to take steps in that regard. It was contended by the learned counsel that the Tribunal should have taken note of this observation and concluded that the programme offered by IASE did not have the required recognition.
(ii) The second ground canvassed was that the Tribunal failed to consider the ruling of the Apex Court in the case Annamalai University Vs. Secy. to Govt. INFN. & TOURISM Dept. & Ors., III(2009)SLT 104 in which it was held that any relaxation to be given by DEC would be prospective in nature. It was urged by the learned counsel that in this case, the DEC had given retrospective approval to the programmes of IASE and such retrospective recognition was not correct in law.
4. Learned counsel for the respondent submits that the specific paragraph of the letter dated 15.03.2010 of DEC on which the review applicant is placing so much stress, had, in fact, been considered in the order dated 19.11.2010 of this Tribunal. In this connection, he draws our attention to paragraph 5.1 which not only gives an extract of the second paragraph of the letter dated 15.03.2010 of DEC referred to by the review applicant but also takes note of the contention of the respondent organization which is being re-canvassed now. At the same time, the Tribunal also took note of the first paragraph of that very letter as well as the letter dated 29.08.2007 of Indira Gandhi National Open University, the letter dated 12.02.2010 of the Ministry of Human Resource Development, the fact that approval of the programme run by the deemed University in distance mode was accorded till 2007-2008 by a Joint Committee consisting of representatives of UGC, DEC and AICTE in its meeting held on 07.08.2007 before coming to its well reasoned finding.
4.1 As regards the judgment of Honble Supreme Court in Annamalai University case (supra) he submits that this judgment was neither cited by the respondent in the counter-affidavit in the OA nor included in the pleadings of the present review application. This judgment was of 2009 and very much available to the respondents. In the absence of any pleading about this ruling, nor about any citation in this regard, the review applicant will not be justified to raise this ground after the pleadings are closed at the late stage of hearing of the RA. He places reliance on the case of State of West Bengal and Others Vs. Kamal Sengupta and Another, (2008) 8 SCC 612 about the scope of review and submits that the Tribunal cannot possibly re-write its own judgment in the garb of a review order, neither can it treat the review application as an appeal.
5. Let us examine the ruling of Honble Supreme Court in the case of Annamalai University case (supra). In this case, the Honble Supreme Court was examining whether there was any conflict in the provisions of University Grant Commission Act of 1956 which was enacted under Entry-66 of List-I of the Seventh Schedule of the Constitution and the Indira Gandhi National Open University Act, 1985 which was enacted by the Parliament in exercise of its power under Entry-25 of List-III of that Schedule. It held that there was no conflict between the provisions of these two Acts and the UGC set up under the UGC Act was competent to frame regulations for the purpose of co-ordination and determination of standards in institutions for higher education. These regulations would have mandatory effect on all Universities including Indira Gandhi National Open University which cannot unilaterally exempt provisions of mandatory regulations that too retrospectively. The paragraph, which is relevant for our purpose reads thus:-
29. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant-University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5.5.2004 that the appellant University had no jurisdiction to confer such degrees, in our opinion, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of UGC ACT. When mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect. The provisions of UGC Act are not in conflict with the provisions of Open University Act. It is beyond any cavil of doubt that UGC Act shall prevail over Open University Act. No doubt, Honble Supreme Court has made an observation that the relaxation to be granted by DEC should ordinarily have prospective effect but it had to be viewed in the context of the facts of that case that Indira Gandhi National Open University did not have jurisdiction to validate patently invalid degrees, a proposition which was accepted by that University itself in its letter of 05.05.2004. Therefore, it was held that it could not have validated an act which was against the mandatory requirements.
6. In the present case, there was no such mandatory requirement which had been violated. On the other hand, it is seen that not only the representatives DEC which is the appropriate agency of Indira Gandhi National Open University for distance education, but also those of UGC and AICTE which is the Apex Authority to regulate technical education sat together in a meeting on 07.08.2007 and accorded approval to the programmes run by IASE till 2007-2008. In other words, the approval had the sanction not only of DEC but also of UGC and AICTE. The facts in this case, therefore, can be distinguished.
6.1 It is also a fact that the review applicant had not taken the aforesaid ground either at the time of filing its counter in the OA or in the review application itself. The query as to why this ground was not taken was left unanswered by the learned counsel for the review applicant.
6.2 It is seen that a co-ordinate Bench of this Tribunal allowed OA-3741/2009 on consideration of similar facts by adopting the reasoning given in the impugned order. A similar issue was examined by the Honble High court of Punjab & Haryana in the case Vikash Kumar Vs. Haryana State Pollution Control Board and another, (CWP-1405/2009) decided on 13.01.2010 where the applicant, who had obtained diploma from J.R.N. Rajasthan Vidyapeeth University, Udaipur, deemed University, was disqualified for appointment to the post of Junior Environment Engineer in Haryana State Pollution Control Board on the ground that the diploma certificate issued by the deemed University through distance mode was not a recognized certificate. The Honble High Court noted the fact that a decision was taken by the Joint Committee of the UGC,AICTE and DEC of Open University held on 07.08.2007 approving the programmes run by the Deemed University upto 2007-08. It was considering the submission of respondents therein that AICTE in a subsequent letter mentioned that they had not accorded any specific approval to the diploma course in Engineering run by the deemed University (a similar stand was taken by DEC in paragraph-2 of their letter dated 15.03.2010 in the present case, already referred to). Relying on the decision of the Honble Supreme Court in the case Bharthidasan University and another Vs. All India Council for Technical Education and other, AIR 2001 SC 2861, it came to the conclusion that a deemed University, which is set up under relevant statute has the power of according diplomas/degrees and they do not have to obtain prior approval from the AICTE. Applying this logic, their finding was that the certificate issued by a deemed University through Distance Mode is a valid one. Accordingly, the action of the State Government to disqualify candidates on the ground that prior approval of the AICTE was not available before the diploma in question was issued by the deemed University was held as untenable. A similar issue was considered by the Honble High Court of Himachal Pradesh, Shimla in the case Sudesh Kumari and others Vs. HPSEB, (CWP-3206/2010) decided on 05.04.2011. Their observations read as follows:-
5. The UGC in its public notice Annexure P-26 has clearly stated that it is the Joint Committee of the UGC-AICTE-DEC which has to consider this question. The minutes of the 3rd meeting of the Joint Committee have been placed on record as Annexure P-28 and this Annexure shows that ex-post-facto approval to various institutions including the Vinayaka Missions University and the IASE Deemed University up to the academic year 2007-08 was granted. Thus, it is clear that both these Institutions were duly recognized up to the year 200708. It is also not disputed that all the petitioners had attained their graduation degree in Engineering on or before the said session.
6. xxxxxx
7. This stand of the Board cannot be accepted in view of the recognition granted to the aforesaid two Institutions to conduct these courses by distant education mode as is reflected in the minutes of the Joint Committee of the UGC-AICTE-DEC, referred to above.
7. The advertisement pursuant to which the applicant offered himself as a candidate only says that he should have diploma in Mechanical/Electrical/Electronics/Electronics & Communication/ equivalent engineering discipline from a Govt. recognized institute with minimum 50% marks in the concerned discipline from the Govt. recognized university/institute. The issue before the Tribunal was whether the original applicant had such a certificate. On the basis of facts which were before the Tribunal it came to a finding that the candidate had obtained diploma certificate from AICTE, a deemed university in the year 2005 which was recognized by the appropriate bodies as well as the Ministry of Human Resource Development which had clearly stated in their letter dated 12.02.2010 that the degrees/diploma already awarded by the IASE are recognized for the purpose of employment under Central Government. This view is reinforced by the judgments of the High Courts of Punjab & Haryana as well as Himachal Pradesh.
8. The settled law is that review application cannot be treated as an appeal. Honble Supreme Court has defined the scope of review in State of West Bengal and Ors. case (supra) in the following manner:-
22. The term mistake or error apparent by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the fact of the record for the purpose Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. While exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. It goes to the extent to say that even if there is an error in law and a different view could have been taken by the Tribunal on a point of fact of law, an order cannot be corrected through review. The proper course of action for the affected party would be to seek remedy at appropriate judicial forum.
9. For the foregoing reasons, we are not in a position to sustain the review application, which is accordingly dismissed. However, it is noticed that the date 05.03.2010 appearing in paragraph-6 before reproduction of the extract of the order is a typographical error. It, should read as 15.03.2010. Similarly the word stand appearing in the last sentence of Paragraph-7 should read as stands.
(Dr. Dharam Paul Sharma) (Dr. A.K. Mishra)
Member (J) Member (A)
/vinita/