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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