C.W.P. No.1405 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.1405 of 2009 Date of Decision: 13.01.2010 Vikash Kumar ....Petitioner Versus Haryana State Pollution Control Board and another ....Respondents Present: Mr. R.K. Malik, Senior Advocate with Mr. Jitender Bedwal, Advocate for the petitioner. Mr. Hawa Singh Hooda, Advocate General Haryana with Mr. Jatinder Pal Singh, Advocate for respondent No.1. Mr. Ravi Dutt Sharma, DAG, Haryana for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes ` -.- K. KANNAN J.(ORAL) 1. The writ petition seeks for issue of writ of certiorari to quash the order of the Chairman, Haryana State Pollution Control Board under the terms of which it was observed that the recommendation of diploma awarded by J.R.N. Rajasthan Vidyapeeth University, Udaipur shall not be accepted and treated as fulfilling the qualification prescribed for Junior Environmental Engineer. The qualification for consideration for appointment to the post namely Junior Environmental Engineer is diploma in Mechanical Engineering. Admittedly, the petitioner had a C.W.P. No.1405 of 2009 -2- diploma but it was issued by the Rajasthan Vidyapeeth University, which is a deemed University, through a distance education programme. The contention of learned Senior Counsel for the petitioner is that the Department of Secondary & Higher Education, Government of India had already issued a notification on 01.03.1995 declaring that all the qualifications awarded through distance education by Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under the UGC Act of 1956 and Institutions of National Importance recognized under an Act of Parliament shall automatically be recognized for the purpose of employment to the posts and services under the Central Government, provided it had been approved by the Distance Education Council and whenever necessary, by All India Council for Technical Education (hereinafter called as “AICTE"). The notification is still in place and the decision of the State was purported to have been taken in view of a communication issued by the AICTE to the Director, Technical Education, Government of Haryana clarifying that AICTE had not given any approval to any University or Institution to offer UG/PG degree programme in Engineering/Technology and diploma programmes through the distance education mode and that would include among other institutions, the Rajasthan Vidyapeeth Udaipur. 3. Learned Senior Counsel appearing for the petitioner, however, would contend that in a meeting held on 13.01.2009 C.W.P. No.1405 of 2009 -3- under the Chairmanship of Chief Secretary, Haryana regarding the equivalence of technical education awarded by Deemed Universities and Technical Institution, the following decision, inter alia, among other decisions had been taken: “In view of the notification issued by AICTE as referred to above, a Degree/Diploma in any discipline of Technical Education, including Engineering & Technology, earned through Distance Education Mode from Universities/Deemed Universities/Technical Institutions is valid qualification for initial recruitment as well as promotion, only if such Degree/Diploma programme of technical education conducted through distance education mode has been approved by the Joint Committee of UGC-AICTE-DEC. Vide its letter No.PC/Dis. Edu. 2008/dated 12.12.2008 of AICTE addressed to Director, Technical Education, Haryana, the All India Council of Technical Education has clarified that it has not given approval to any University/Institution to offer UG, PG Degree programmes and diploma programmes in Engineering/Technical through Distance Education mode till date (December 22, 2008). As such no UG/PG Degree and Diploma in Engineering/Technology obtained through distance education mode is valid for initial appointment and promotion. However, updated C.W.P. No.1405 of 2009 -4- position in respect of approval by the Joint Committee could be collected from the AICTE.” 4. This was a sequel to a decision taken by the Joint Committee of the University Grants Commission (UGC), All India Council for Technical Education (AICTE) and Distance Education held on 07.08.2007. The decision set out in paragraph 3 reads as follows: “The Joint Committee accepted the recommendations of the Committee appointed by DEC for examining the institutions that have applied for ex-post-facto approval to DEC. It accepted the recommendations of granting ex-post-facto approval to all the four institutions namely: JRN Rajasthan Vidyapeeth, Allahabad Agriculture Institute Deemed University, Vinayaka University, Punjab Technical University and IASE Deemed University upto the current academic year i.e. 2007-08 and the suggestions made by the visiting Expert Committee should be made know to them which should be strictly adhere to. However, they need to apply for format recognition to DEC for the next academic year.” 5. Learned Senior Counsel, Sh. Malik would contend that when the Joint Committee had accepted the recommendation of the Committee appointed by DEC granting ex-post-facto approval to all the institutions including JRN Rajasthan Vidyapeeth, there C.W.P. No.1405 of 2009 -5- was no need for any further prevarication and the impugned order was out of sync with the decisions already taken by the Joint Committee and as above in the meeting held under the Chairmanship of the Chief Secretary, Haryana. 6. Mr. Hawa Singh Hooda, Advocate General Haryana appearing for respondent No.1 would contend that the decision taken on 13.01.2009 under the Chairmanship of Chief Secretary had saved situations where by a reference to a letter dated 12.12.2008 addressed to AICTE, it had elicited an information and which was what was referred to in the communication dated 22.12.2008. AICTE had clarified that it had not given any approval to JRN Rajasthan Vidyapeeth to offer a diploma course through distance education mode and the decision taken ultimately to reject the candidature of the petitioner was, therefore, justified. 7. One thing stands out: the status of the JRN Rajasthan Vidyapeeth as a Deemed University under the UGC Act is not denied. That they had awarded a diploma to the petitioner through the distance education mode is also not in dispute. It is only the validity of such a diploma that is in dispute. The clarification of AICTE that they had not approved weighed with the decision of the Governemnt and that is what is challenged by the petitioner. Learned Senior Counsel, Mr. Malik would contend that a diploma issued by a University or a Deemed University cannot be a subject of approval by AICTE for the only reason that C.W.P. No.1405 of 2009 -6- it does not require any form of approval from AICTE. The AICTE, which has been established under the All India Council of Technical Education Act, 1987 is, according to him, not entitled to treat itself as an authority either superior or to supervise or control the University and cannot super-impose upon such University, merely by reason that it is imparting technical education. The extent of control by AICTE vis-a-vis the degree or diploma by University or Deemed University came for consideration before the Hon'ble Supreme Court in Bharthidasan University and another Vs. All India Council for Technical Education and other AIR 2001 SC 2861. While reversing the decision of the Madras High Court, the Hon'ble Supreme Court held: “A careful analysis of the various provisions contained in Sections 10,11 and 22 will further go to show that the role of interaction conferred upon AICTE vis-a-vis Universities is limited to the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it, wioth no further or direct control over such universities or scope for any direction action except bringing it to the notice of the UGC or other authorities only, of any lapses is carrying out any directions of the AICTE in this regardd, for appropriate action. The UGC and universities have always had and C.W.P. No.1405 of 2009 -7- have an accepted and well-merited role of primacy to play in shaping as well as stepping up a co-ordinated development and improvement in the standards of education and research in the sphere of education. When it is only institutions other than universities which are to seek affiliation, it was not correct to the state in the decisions under challenges that an University which cannot grant affiliation to a technical institution, cannot grant the same to itself. " 8. The above observation would show that the role of interaction conferred upon AICTE vis-a-vis a University is limited only for the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it. It had no further control over the University or a Deemed University. In other words, the University is, by the very nature of things, autonomous in itself and the credibility of the degrees and diplomas obtain through the standing that it commands with the public. Beyond setting the standards of education, AICTE will have no control. In fact, the AICTE is itself a creature to regulate education institutions generally and not the University. The Hon'ble Supreme Court in the above judgment also held that even while empowering AICTE to do certain things, a special care had been taken to make a specific mention of Universities only to delimit its power in its interaction with Universities and University C.W.P. No.1405 of 2009 -8- Departments as well as its constituent institutions. In the statement of object to the AICTE Act, the evil sought to be curbed was said to be setting up indiscriminately number of private engineering colleges and polytechnics which had diluted the standards. The language employed under the Act for such a purpose through Section 10-K of the Act made a deliberate omission to refer to the University and while it provided for according approval for starting new technical institutions and introduction of new programmes, it referred merely to institutions and did not refer to University or Deemed University. This omission was found by the Hon'ble Supreme Court to be significant and drew a reasoning that a degree or diploma awarded by University would require no approval from AICTE. This judgment was cited and followed in decision of a Division Bench of this Hon'ble Court in Sandeep and others Vs. State of Haryana and others, C.W.P. No.212 of 2004 dated 23.04.2004 where the Division Bench held that a diploma awarded by University did not require approval from All India Council. The Bench was rejecting the contention so advanced by the State. 9. The decision by the State, under the circumstances, to look to the approval from AICTE and finding that such approval was not obtained, to disqualify a person to hold a diploma issued by a Deemed University through distance education mode, is clearly untenable. The impugned proceedings issued by the Chairman, Haryana State Pollution Control Board is quashed and C.W.P. No.1405 of 2009 -9- the respondent is directed to consider the diploma issued by the Deemed University to the petitioner as valid and pass appropriate orders for appointing the petitioner as a Junior Divisional Engineer, if he is qualified and if his candidature is accepted for merit acceptance. 10. The petitioner seeks for the treatment of the appointment as having been effected from the date when persons lower in merit had been appointed. The appointment to the petitioner had been denied on a wrong basis and therefore, the petitioner must be taken as appointed from a retrospective date. Learned Senior Counsel would say that he is prepared to forego the benefits from due date of appointment to the actual date of appointment that shall be done by virute of this order. The deemed date of appointment to be applied is indeed novel, but the issue has come up before this Court in Hawa Singh Sangwan Vs. Union of India and others 1991(6) SLR 753, when this Hon'ble Court dealt with a case of selection by direct recruitment of Sub Inspector and the actual appointment was made only in 1974 when the selection had taken place in the year 1970. The delay in appointment was seen as arising due to procedural defects and the Court held that a person, who has unduly denied the appointment was entitled to arrears of salary, confirmation, seniority and other benefits. The same approach has also been rendered by a subsequent judgment of this Hon'ble Court in Dr. Rajneet Singh and others Vs. State of Punjab, through its Principal Secretary C.W.P. No.1405 of 2009 -10- and others in C.W.P. No.11280 of 2007 dated 02.07.2009. The learned Judge had observed that the right of appointment along with others, which had been frustrated by an illegal action could be compensated only by directing the appointment to be effective from the date when others were appointed and they were also granted consequential benefits arising from the deemed date of appointment other than arrears of salary. In terms of the aforesaid two judgments, the petitioner shall be deemed to have appointed on the same day when the appointment orders were issued for others and the date shall be reckoned for all service benefits such as seniority etc. from the respective date. The petitioner however shall not be entitled to any remuneration during the period and the remuneration shall be made from the date when he is offered the employment, which shall be issued within a period of two weeks from the date of receipt of copy of the order. (K. KANNAN) JUDGE January 13, 2010 Pankaj*