Punjab-Haryana High Court
Malkeet Singh vs State Of Punjab And Others on 20 April, 2021 In the High Court of Punjab and Haryana, at Chandigarh
Civil Writ Petition No. 15008 of 2020
Date of Decision: 20.04.2021
Malkeet Singh
… Petitioner(s)
Versus
State of Punjab and Others
… Respondent(s)
CORAM: Hon’ble Mr. Justice Anil Kshetarpal.
Present: Mr. Vikas Singh, Advocate
for the petitioner.
Ms. Maloo Chahal, Deputy Advocate General,
Punjab for the respondents.
Anil Kshetarpal, J.
Through this writ petition, filed under Article 226 of the
Constitution of India, the petitioner prays for issuance of a writ in the nature
of certiorari to quash the order dated 28.08.2020 (Annexure P15), whereby
the services of the petitioner have been dispensed with.
The petitioner was employed on compassionate basis on
24.12.2015 as a Clerk after his father, who was working as a Driver, died on
28.08.2008. At the time of appointment, the petitioner claimed that he is a
graduate from Mahatma Gandhi University, Meghalaya, India. The
respondent-State, on verification of the degree, has found that the aforesaid
University did not have the required permission to open Study Center/Off
Campus Center and therefore, the graduation degree of the University is not
recognized. The learned counsel for the petitioner contends that as per the
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Punjab Roadways (Ministerial) State Services Class-III Rules, 1977
(hereinafter referred to as “the 1977 Rules”), the minimum qualification is
matriculation and not graduation. Further, the learned counsel for the
petitioner contends that the services of the petitioner cannot be dispensed
with in view of the judgment passed in Karamjeet Kaur v. State of Punjab
and Others 2019 (3) SCT 162.
Per contra, the respondents have filed a detailed written
statement contending that the petitioner does not possess the minimum
qualification as the graduation degree is not recognized. It has further been
pointed out that as per Rule 15 of the Punjab Civil Services (General and
Common Conditions) Rules, 1994 (hereinafter referred to as “the 1994
Rules”), the minimum academic qualification for the post of Clerk is
graduation and since Rule 20 ibid has been given an overriding effect,
therefore, no Clerk can be appointed in the service of the State without
possessing the minimum qualification.
This Bench has heard learned counsel for the parties at length
and with their able assistance, perused the paper-book.
As regards the first argument, it may be noted that in the
appointment letter itself, it was indicated that the services of the petitioner
shall be governed by the 1977 Rules as well as the Punjab Civil Services
Rules. Rule 15 clearly provides that the minimum qualification for the post
of Clerk is graduate and not matriculation. Further, Rule 20 of the 1994
Rules starts with a non-obstante clause and therefore, has been given an
overriding effect as it is placed on a higher pedestal. In view thereof, the
argument of learned counsel for the petitioner that the minimum
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qualification for the post of Clerk is matriculation does not have any
substance.
As regards the next argument, it is to be noted that in
Karamjeet Kaur (supra), a Co-ordinate Bench, while examining the issue in
detail, has laid down the following parameters/directions:
“52. Upon consideration of facts, developments and change in
distance education policies over the time and the findings
recorded under different heads from HEAD “A” To “G”
following parameters/directions are issued:-
(i) In case of Deemed Universities and Private
Institutions (other than Universities) the cut-off date with
regard to territorial jurisdiction and study centre will be
29.3.2010, all admissions made prior to 29.3.2010 to
obtain degrees awarded through use of study centres, off-
campus centres of Deemed Universities and Private
Institutions (other than Universities) will be valid,
subject to the statutes/ MOA (Memorandum of
Association) of University permitting opening up of
Centres in the territory from which it was operating or
permits opening up of centres at any place where there
are reasonable concentration of students (as permitted
by UGC in 1985 Regulations, Annexure P-34).
(ii) In case of State Universities (both Government
funded or Private funded)the cut-off date will be
1.11.2012 , therefore all admissions made prior to
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1.11.2012 to obtain degrees awarded through use study
centres/off campus centres of State Universities or
Private Universities will be valid, subject to the statutes/
MOA of University permitting opening up of Centre in
the territory from which it is operating or permits
opening up of centres at any place where there are
reasonable concentration of students (as permitted by
UGC in 1985 Regulations, Annexure P-34).
(iii) The qualifications attained after the cut-off date
mentioned above will stand de-recognised for all
purposes. However as opening up of study centers was
permitted after prior approval from UGC, it is clarified
that even after the cut-off date if the qualification
attained through distance education mode from
Institutions (other than University) / Universities
(Central University, State University, Deemed University
or Private University) is in consonance with the
regulations/ notifications/policies of DEC/ UGC with
regard to territorial jurisdiction and study centres
prevailing at the relevant time and the study centre is
approved by the UGC, then the qualification will be
recognised and valid. This observation has been made
due to lack of complete Information before this Court, as
no list of approved study centres has been brought before
this Hon’ble Court.
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(iv) With regard to First degrees awarded by
Universities [including Central Universities, State
Universities, Private Universities, Deemed Universities]
by way of Distance Education in the faculties of Arts,
Humanities, Fine Arts, Music, Social Sciences,
Commerce and Sciences are concerned, the same shall
be valid in light of the 1985 regulations (Annexure P-34)
permitting imparting education though distance mode
via study centres, subject to being admitted in the
University prior to the cut-off date mentioned above in
para no. (i) & (ii) of parameters laid above, as the case
may be.
(v) With regard to Post graduation degrees awarded
by way of distance education in non-technical field (such
as Arts, Humanities, Fine Arts, Music, Social Sciences,
Commerce and Sciences etc.) in cases where Institutional
Recognition has been granted, if the qualification is in
terms of MOA (Memorandum of Association) / Acts/
Statute of the University viz the field of specialization
and the degree is notified under Section 22 of the UGC
Act (List of degrees specified under Section 22 of UGC
Act is on record as Annexure P38) the same shall stand
validated, subject to being admitted in the University
prior to the cut-off date mentioned above in para no. (i)
& (ii) of parameters laid above, as the case may be.
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(vi) With regard to post graduation degrees awarded
by way of distance education in Non-Technical Field
(such as Arts, Humanities, Fine Arts, Music, Social
Sciences, Commerce and Sciences etc.) where
programme wise recognition has been granted, only
those qualifications will be valid which have been
mentioned in the list of approved/recognised
qualifications, subject to being admitted in the University
prior to the cut-off date mentioned above in para no. (i)
& (ii) of parameters laid above, as the case may be.
(vii) The qualifications which have been held to be
valid above be treated as at par with the degrees
awarded by way of conventional mode/ regular mode of
education.
(viii) The State Government is directed to take
necessary action in terms of the above findings within a
period of 6 months from the date of receipt of certified
copy of the order. The State government can verify the
recognition list [whether University (Central, State,
Deemed or Private) /Institution (other than University)
had “Institutional Recognition”at particular time or
“Programme-wise Recognition”] uploaded by the
Distance Education Bureau, UGC on its website, which
is also on record as Annexure P-57. Further the State
government can also verify as to whether degree has
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been mentioned in the list of degree specified under
Section 22 of UGC Act or not from the list uploaded on
the website of UGC which is also on record as Annexure
P-38.With regard to Memorandum of Association, Act
and Statutes of the universities, the State government can
obtain the same from the students whose cases are
pending at the level of the government or from the
concerned universities or from the UGC.
(ix) The State government after completing the
exercise in terms of Para No.(viii) hereinabove would
start a portal/webpage/ website wherein information with
regard to recognition of different types of degrees from
various universities is uploaded, so that not only general
public is aware with regard to recognition of degrees, but
also uniformity & transparency can be maintained with
regard to implementation of the aforesaid directions, in
all the departments of the State Government right down
till the field level.
For clarity an illustration is being given hereunder:-
To verify the qualification of a candidate
who has attained qualification of M.A. through
distance education mode from a University in
Rajasthan having centre in Punjab, the state will
firstly check the status of the University viz if the
university is a Deemed University then cut-off date
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mentioned above in para no. (i) of parameters laid
above will be applicable and in case of state
universities and private universities cut-off date
mentioned above in para no. (ii) of parameters
laid above will be applicable.
In case the candidate has got admission in
the course after the cut-off date, the same shall be
invalid, however if he was admitted in the course
prior to the cutoff date in that case the state will
then verify the statutes/MOA of the University and
if the degree is in the field mentioned in the
statutes/ MOA and is also mentioned in the list of
degree specified under Section 22 of the UGC,
then the qualification will be considered as valid
subject to the territory from which University is
operating is in consonance with the Acts/ Statutes /
MOA of the University. As in the present
Illustration if in the statutes/MOA of University
field of Arts is mentioned and the degree of M.A. is
also mentioned in the list of degree specified under
Section 22 and in the Statute/ MOA of University it
is mentioned that territorial jurisdiction of
University is throughout the territory of India or
that it can open centres where ever there are
reasonable concentration of students,then the
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qualification attained from centre at Punjab shall
be considered as valid.
(x) In view to reduce litigation and hardship of the
candidates/ students liberty is being granted to all the
students/candidates who will be affected on account of
noncompliance of the aforesaid directions, by the State
Government, to adopt appropriate recourse of law
including filing of the contempt petition.
(xi) It is clarified for all purposes, that the candidates
whose degree will stand invalidated in view of the
parameters mentioned above, all benefits secured by
such candidates/ employees shall stand withdrawn,
however if any monetary benefit has been drawn such as
salary etc. the same shall not be recovered. In such cases
the employees /candidates will be at the liberty to take
appropriate action, as available under law, so as to
recover the amount paid towards tuition fees,
expenditure incurred, damages etc. etc. from the
University/ Institution concerned. The above said
direction is being given on the lines of directions, in
similar situation issued by the Hon’ble Supreme Court of
India in paragraph 53 (vii) of the judgment reported as
2017 (4) SCT 683: 2017 AIR (SC) 5179 titled as Orissa
Lift Irrigation Corp. Ltd V. Rabi Sankar Patro.
However this Court considering the hardships to
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be faced by the employee for no fault of his and who on
the basis of the above said qualification which is not in
terms of the aforesaid parameters, had secured jobs (on
regular basis/ permanent basis as per Recruitment Rules)
and had settled in their life and have attained ample
experience while performing the duties on the post which
he/ she is holding for a substantial period of time,
considers it appropriate that a one-time concession be
granted to the effect, that the persons who are already in
job on the basis of the qualification which might be
invalidated on account of above said directions, be
permitted to continue in job, but in the cases where the
qualification if invalidated was essential qualification to
hold the post, they shall not be granted any further
benefits, viz promotion etc. etc. In the cases where
qualification which does not fulfill the above said
parameters is not an essential qualification and has been
utilized only for securing higher marks at the time of
selection, their case be treated separately as they fulfill
the requisite qualification in terms of the statutory rules
governing the post, therefore they will be entitled for all
further benefits subject to that even in case of promotion
the qualification so invalidated is not an essential
qualification.
Similarly in cases where an employee was
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recruited on temporary basis after due selection process
based upon distance education degrees (now invalidated
in view of the parameters laid above) but has been
denied regularization of services on account of such
distance education degrees despite otherwise being
eligible, suitable for regularization, while other persons
recruited along with such employee have been
regularized in service, in such cases benefit of
regularization be extended if the qualification (attained
through distance education mode) so invalidated is not
an essential qualification to hold the post in terms of
statutory rules and is an additional qualification which
may have been used for attaining additional marks at the
time of initial selection. All benefits of service will be
extended as have been granted to other employees
recruited in the same selection or appointment made at
the same time. However, if the qualification from
distance education mode (which now stands invalidated
in view of above parameters) is essential qualification to
hold the post, in that case NO benefit will be granted
including benefit of regularization. It is so being laid
down as temporary employee has no vested right to hold
the post.
Note:-
(a) It is clarified that, in case where the respondent
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State did not consider any person for appointment by
way of direct recruitment or by promotion on account of
possessing qualification through distance education
mode, but has been issued orders pursuant to interim
orders issued by the Hon’ble Court or has been issued
conditionally subject to outcome of any petition pending
before the Hon’ble Court, in that case concession
granted hereinabove will not be extended. The
concession has been given on the rationale that there
was complete disclosure on part of employee and state
having found eligible, permitted employee to work for a
considerable period, irrespective of holding a distance
education degree.
(b) In a situation where the graduation or post-
graduation has been attained through distance education
mode and higher qualification has been attained through
normal mode/conventional mode but his graduation or
post-graduation degree attained through distance
education mode stands invalidated in view of the
aforesaid parameters, then the higher qualification
attained on the basis of the degree so invalidated will
also stand invalidated, as illegality at the original/
foundation stage being a nullity cannot be cured by
subsequent acquisition of valid higher degree based upon
such invalid degree. It is well settled that in case of
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foundation being a nullity the whole edifice constructed
thereupon has to fall. This view finds support from the
law laid down by the Hon’ble Apex Court in the case of
M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav
2007 (4) SCT 464 and by this Court in Jagir Singh v.
State of Haryana reported as 2006 (7) SCT 386.
(c) Needless to say, that in case where candidate has
obtained a degree by attending the PCPs and has
undertaken exams in the main campus or within the State
where the University (as defined under Section 2 (f) and
Section 3 of UGC Act) is situated, in that case their
degree shall be valid, as no question of territorial
jurisdiction arises. This is subject to the University,
having recognition to impart education in such field (at
the time of institutional recognition, MOA/Statutes of
University permits imparting education in such field and
at the time of programme-wise recognition such course
had been permitted)”.
From a careful perusal of the order impugned herein, it is
apparent that the Mahatma Gandhi University, Meghalya, is a Private
University. Still further, on careful perusal of the statement of marks
(Annexure P2), it is apparent that the Mahatma Gandhi University was set
up by the Mahatma Gandhi University Act, 2010.
Keeping in view the aforesaid facts, it is considered appropriate
to set aside the order (Annexure P15) and direct the respondents to pass a
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fresh order after taking into considerations the parameters/directions issued
in Karamjeet Kaur (supra).
Hence, the present writ petition is allowed and the matter is
remitted to the respondents to pass a fresh order within 3 months from the
date of the order.
(Anil Kshetarpal)
Judge
April 20, 2021
“DK”
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
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