Punjab-Haryana High Court
Sandeep Kumar vs State Of Punjab And Ors on 20 April, 2021 In the High Court of Punjab and Haryana, at Chandigarh

1. Civil Writ Petition No. 26560 of 2017

Sandeep Kumar
… Petitioner(s)

Versus
State of Punjab and Others
… Respondent(s)

AND

2. Civil Writ Petition No. 16209 of 2018 (O&M)

Gurinder Singh
… Petitioner(s)

Versus
State of Punjab and Another
… Respondent(s)

DATE OF DECISION: 20.04.2021

CORAM: Hon’ble Mr. Justice Anil Kshetarpal.

Present: Mr. Vikas Singh, Advocate
for the petitioner (In CWP-26560-2017).

Mr. Jag Nahar Singh, Advocate
for the petitioner (In CWP-16209-2018).

Ms. Maloo Chahal, Deputy Advocate General,
Punjab, for the respondents.

Anil Kshetarpal, J.

By this order, Civil Writ Petition No. 26560 of 2017 and 16209

of 2018 shall stand disposed of. Learned counsel for the parties are ad idem

that both these writ petitions can be conveniently disposed of by a common

order.

2. In both these writ petitions, each of the petitioners was

appointed on compassionate basis on 24.12.2015. The petitioners have

claimed that they possess the minimum academic qualification as they have

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graduated from Eastern Institute of Integral Learning in Management

University, Sikkim (for short “EIILM”). The petitioners were appointed

subject to verification of their academic qualification. On verification, the

respondents found that the graduation degree of the petitioners is not

recognized by the University Grants Commission/Distance Educational

Council. On the basis thereof, the services of the petitioners have been

dispensed with.

3. In response to the notice of motion, a written statement has

been filed contending that the petitioners are not eligible as they do not

possess valid graduation degrees.

4. This Bench has heard learned counsel for the parties at length

and with their able assistance, perused the paper books.

5. Learned counsels appearing for the petitioners contend that as

per the Punjab Roadways (Ministerial) State Services Class-III Rules, 1977

(hereinafter referred to as “the 1977 Rules”), the minimum academic

qualification required for being appointed to the post of Clerk is matric.

They, hence, contend that even if the petitioners do not possess a recognized

graduation degree, still their services cannot be dispensed with. They further

contend that in view of the judgment passed by a Co-ordinate Bench in

Karamjeet Kaur v. State of Punjab and Others 2019 (3) SCT 162, since the

petitioners got admission before the cut-off date i.e. 01.11.2012, therefore,

their services cannot be dispensed with.

6. Per contra, Ms. Maloo Chahal, Deputy Advocate General,

Punjab, has contended that the petitioners do not possess a valid graduation

degree, therefore, they are not entitled to continue in service as their

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appointment was subject to the verification of their academic testimonials.

7. Having heard learned counsel for the parties, this Bench is of

the view that the matter is required to be remitted back to the respondents to

pass a fresh order. Hence, it would not be appropriate to examine the

contentions of learned counsel for the petitioners in detail. However, the

brief reasons for remitting the matter back to the respondents are as under:

1) As regards the arguments of learned counsel that as per

the 1977 Rules, the petitioners are not required to be graduate, it is

appropriate to notice that in the appointment letter itself, it has been

specifically stated that the services of the petitioners shall be

governed by the 1977 Rules and the Punjab Civil Services (General

and Common Conditions) Rules, 1994 (hereinafter referred to as “the

1994 Rules”). Still further, vide notification dated 10.02.2009, the

1994 Rules have been amended and Rule 15 thereof reads as under:

“15. Minimum Educational and other qualifications:

(i) No person shall be given direct appointment to the

post of Clerk under the Punjab Government unless

he possesses the Bachelor’s Degree from a

recognized University or Institution; and

(ii) Possesses atleast one hundred and twenty hours

course with hands on experience in the use of

Personal Computer or Information Technology in

Office Productivity applications or Desktop

Publishing applications from a Government

recognised institution or a reputed institution

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which is ISO 9001 certified”.

Still further, Rule 20 of the 1994 Rules starts with

a non-obstante clause and therefore, it has been given an

overriding effect. Hence, there is no substance in the first

contention of learned counsel for the petitioners.

2) As regards the second contention of learned

counsel for the petitioners, it may be noted that a Co-ordinate

Bench in Karamjeet Kaur (supra) has, after examining various

aspects of the matter, held as under:

“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

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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 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,

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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.

(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

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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.

(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

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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 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

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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

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

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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

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AIR (SC) 5179 titled as Orissa Lift Irrigation

Corp. Ltd V. Rabi Sankar Patro.

However this Court considering the

hardships to 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

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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

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

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(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 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

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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 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

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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)”.

8. It is apparent from the perusal of the documents that EIILM

University was set up by the State Act i.e. Eastern Institute for Integrated

Learning in Management University Act, 2006 notified w.e.f. 17.04.2006. In

view thereof, in Karamjeet Kaur (supra), certain directions have been issued

governing such cases.

9. In view of the aforesaid facts, while setting aside the orders

dispensing with the services of the petitioners, the respondents are directed

to consider the entire matter once again and pass a speaking order after

taking into consideration the judgment in Karamjeet Kaur (supra). Let this

exercise be completed within a period of three months from the date of

receipt of a certified copy of this order.

10. With the observations made above, both the writ petitions are

partly allowed.

(Anil Kshetarpal)
Judge
April 20, 2021
“DK”
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No

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